Western Australia v Daniel - [2002] NNTTA 230

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/David Daniel & Ors on behalf of the Ngarluma and Yindjibarndi People; Valeria Holborow & Ors on behalf of the Yaburara and Mardudhunera People; Wilfred Hicks & Ors on behalf of the Wong-goo-tt-oo People, [2002] NNTTA 230 (12 November 2002)

Application Nos: WF02/17 & WF02/18

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

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IN THE MATTER of a Future Act Determination Application

The State of Western Australia (Government party/Applicant)

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David Daniel & Ors on behalf of the Ngarluma and Yindjibarndi People

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Valeria Holborow & Ors on behalf of the Yaburara and Mardudhunera People

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Wilfred Hicks & Ors on behalf of the Wong-goo-tt-oo People (native title parties)

DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Tribunal:  Hon CJ Sumner, Member
Place:  Perth
Date:  12 November 2002

Catchwords: Native title – future act- application for a determination in relation to proposed compulsory acquisition – jurisdiction – whether Government party has negotiated in good faith – evidentiary onus on native title party to satisfy the Tribunal that Government party has not negotiated in good faith – procedures for conduct of good faith hearings – directions to confer about an agreed statement of facts – critical facts to be identified – leave to cross-examine refused – decision made ‘on the papers’ – weight to be given to documentary evidence – confidential and without prejudice documents and discussions admissible – negotiation party entitled to make a s 35 application six months after the s 29 notice was given – the making of a s 35 application not indicative of a lack of good faith – referral to mediation – indicia of good faith negotiations – reasonableness of offers or concessions relevant – obligation to negotiate about effect of future act on native title – no obligation to capitulate or agree – whether political or strategic pressure – Parliamentary privilege – Minister’s statement in Parliament inadmissible – whether obligation on Government party to fund the native title party’s participation – conduct to be judged from the negotiations overall – Government party has negotiated in good faith.

Legislation:Native Title Act 1993 ss 3 (b), 24MD(2), 24MD(6B), 25-44, 26(1)(c)(iii), 29, 29(2)(b)(i), 29(2)(c), 30(1)(a), 31, 33, 35, 36, 36A, 38, 39, 109, 151, 155, 156(5), 203BB(1)(b)(ii)
Land Administration Act 1997 (WA)
Bill of Rights (1689) – Article 9
Parliamentary Privileges Act 1891 (WA) s 1

Cases: Brownley v Western Australia (1999) 95 FCR 152; [1999] FCA 1139
Church of Scientology of California v Johnson-Smith [1972] 1 QB 522
Hamsheer v Swift 1992 33 FCA 545
McDonald v Director-General of Security (1984) 1 FCR 354
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
Prebble v Television New Zealand Ltd (1995) 1 AC 321
Rann v Olsen (2000) 76 SASR 450
Reg v Murphy (1986) 5 NSWLR 18
Risk v Williamson (1998) 87 FCR 202
Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon EM Franklyn QC, 27 August 1999
Rowan & Cornwall & Ors [2000] SASC 160
Sankey v Whitlam (1978) 142 CLR 1
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
WA v Taylor (1996) 134 FLR 211 (Njamal)
Walley v WA (1996) 67 FCR 366; 137 ALR 561
Walley v Western Australia (1999) 87 FCR 565; [1999] FCA 3
Ward v Western Australia (1996) 136 ALR 557
Western Australia/Marjorie May Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon CJ Sumner, 10 December 1997
Western Australia/Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon C J Sumner, 20 February 1998
Western Australia/Walley (Ngoonooru/Wadjari), NNTT WF97/5, Hon CJ Sumner, 25 March 1998
Western Australia / Strickland (Maduwongga & Ors/Crook, NNTT WF98/5, Mr K Wilson, 11 August 1998
Western Australia/Evans/Anaconda Nickel & Ors, NNTT WF98/267 & Ors, Hon C J Sumner, 15 July 1999
Western Australia/Arthur Dimer & Ors (Ngadju People); Cyril Barnes & Ors (Central East Goldfields People)/Equs Limited, NNTT WF99/10, Ms Patricia Lane, 9 August 2000
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
WMC Resources & Anor v Evans (1999) 163 FLR 333

Word & Phrases: ‘negotiate in good faith’

Counsel for the
Government party: Mr George Tannin and Mr Stephen Wright, Crown Solicitor’s Office
Solicitor for the
Government party: Mr P.A. Panegyres, Crown Solicitor

Counsel for the

Ngarluma/Yindjibarndi

native title party: Mr James Fitzgerald

Solicitor for the

Ngarluma/Yindjibarndi

native title party Ms Frances Flanagan, Pilbara Native Title Service

Solicitor for the

Yaburara/Mardudhunera

native title party: Mr Paul Williams, Williams & Co

Counsel for the

Wong-goo-tt-oo native

title party: Mr Ian Viner QC

Solicitor for the

Wong-goo-tt-oo native

title party Mr Grantham Kitto, Kitto & Kitto

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

Introduction

The State of Western Australia (‘the Government party’) proposes, pursuant to the Land Administration Act 1997 (WA), to compulsorily acquire any native title rights and interests in certain land situated in the Shire of Roebourne. The land is in the vicinity of the towns of Dampier and Karratha and comprises part of the land on the Burrup Peninsula, and land on Intercourse Island, West Mid Intercourse Island and part of West Intercourse Island.
The proposals are future acts covered by s 26(1)(c)(iii) of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) and cannot validly be 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.
The Government party gave notice of its intention to compulsorily acquire native title rights and interests in accordance with s 29 of the Act on 9 February 2000, which was designated ‘the notification day’.
On 23 July 2002 the Government party, pursuant to s 35 of the Act, made two future act determination applications to the Tribunal (one for the Burrup Industrial Estate (WF02/17) and one for Intercourse Islands – the Maitland Industrial Estate (WF02/18) which are being dealt with together.

Background to the proposal

The land the subject of these applications is located within the Shire of Roebourne and totals an area of approximately 2, 418 hectares.
There are significant existing industrial developments adjacent to or in the vicinity of the land the subject of these applications namely, the Hamersley Iron Pty Ltd port facilities at Dampier and East Intercourse Islands, the Dampier Salt Ltd salt ponds and shipping facilities at the southern end of the Burrup Peninsula, East Mid Intercourse Island and Mistaken Island and the North West Shelf Joint Venturers’ (Woodside) gas processing plant and port facilities at Withnell Bay and King Bay.

The Hamersley Iron development includes an iron ore shipping facility and cargo facility at Parker Point near Dampier, a power station, infrastructure in the town of Dampier and a second ore storage and offloading facility on East Intercourse Island. The Dampier solar saltfields development includes a causeway from Burrup Peninsula to Mistaken Island via East Mid Intercourse Island.
The North West Shelf Gas Project (Woodside) site includes a gas treatment plant at Withnell Bay, an offshore service facility and Liquified Natural Gas storage and offloading facility at King Bay and a pipeline running from Withnell Bay to Perth and Bunbury. The Project’s materials offloading wharf at King Bay is now the Dampier Port Authority public wharf. The Project also previously included special leases for the purpose of a construction village (since demolished), part of which land is the subject of these applications.
The Government party is proposing to compulsorily acquire any native title rights and interests in the land the subject of these applications for the primary purpose of granting interests in the land to persons other than the Government party. It is intended that the land would then form part of the Burrup and Maitland Industrial Estates with freehold titles to be transferred to the Western Australian Land Authority (‘Landcorp’) for the purposes of granting leases or transferring freehold titles to persons (‘proponents’) for industrial purposes. With respect to the Maitland Industrial Estate, s 29 notices were given covering the Intercourse Islands as well as a mainland area to the south west of the Burrup Peninsula. The mainland section of the Maitland Estate is not the subject of the s 35 application.
The Government party has identified five industrial projects proposed for the Burrup Industrial Estate:

ammonia and urea plants proposed by Burrup Fertilisers Pty Ltd;
ammonia and urea plants proposed by Dampier Nitrogen Pty Ltd (formerly Plenty River);
a methanol plant proposed by Methanex Australia Pty Ltd;
a methanol plant proposed by Australian Methanol Company Pty Ltd (formerly GTL Resources); and
a methanol and di-methyl ether plant proposed by Japan DME Ltd.

No submission was made that any of these companies were grantee parties (s 29(2)(c) NTA) and the matter has proceeded on the basis that the only parties are the Government and native title parties. No proponents have been identified for the Maitland Industrial Estate but Dr Limerick (Director-General of the Department of Mineral and Petroleum Resources) says that over the last few years four companies have shown an interest in establishing on Intercourse Island.

The native title parties

At the time that the notice was given the following persons were registered native title claimants over all of the area of the proposed compulsory acquisition and native title parties in relation to the matter (s 29(2)(b)(i)):

·	WC99/14	David Daniel, Daisy Moses, David Walker, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks on behalf of the Ngarluma People and Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert on behalf of the Indjibarndi people which was accepted for registration on 14 July 1999 (‘the Ngarluma/Yindjibarndi native title party’);
·	WC96/89	Valerie Holborow, Kevin Kelvin Cosmos and Patricia Cooper on behalf of the Yaburara and Mardudhunera Native Title claim group which was accepted for registration on 1 August 1996 (‘the Yaburara/Mardudhunera native title party’); and,
·	WC98/40	Betty Dale, Tim Douglas, Wilfred Hicks, Ernie Ramirez, Dallas Hicks and Cane Hicks on behalf of the Wong-goo-tt-oo Native Title claim group which was accepted for registration on 10 July 1998 (‘the Wong-goo-tt-oo native title party).

No other persons had made native title determination applications by 9 May 2000 (3 months from the notification day) and there were therefore no other persons who had become native title parties by 9 June 2000 (4 months from the notification day) (s 30(1)(a)).

Good faith negotiations – jurisdiction

The Tribunal must be satisfied as a pre-condition to considering the s 35 applications 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 Wong-goo-tt-oo native title party contended that the Government party had not fulfilled its obligation to negotiate in good faith. No contention was made by the other native title parties on the issue.

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.’

These provisions differ from those of the Act prior to the 1998 amendments in that:

the obligation to negotiate in good faith is imposed on all negotiation parties not just the Government party; and
ss 31(2) and 36(2) are new provisions which did not appear in the old Act.

Preliminary proceedings

The Tribunal has said that the practical effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon E M Franklyn QC, 27 August 1999; Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Koara people, NNTT WF99/5, Hon CJ Sumner, 21 December 1999)
The Wong-goo-tt-oo native title party argued that as jurisdiction was under challenge as a result of the failure of the Government party to properly comply with s 31(1)(b), the Tribunal’s directions should require the Government party to provide its contentions and documents before requiring any response from a native title party. The Tribunal rejected this submission on the basis of the effect of s 36(2) and in accordance with the procedures adopted since its introduction.
The Tribunal has previously considered procedures for good faith hearings, noting the comments of the Federal Court in Walley & Ors v Western Australia (1996) 67 FCR 366 (at 378) in response to a submission that a hearing on whether there had been negotiation in good faith could get bogged down with the adducing of evidence and hearing argument:
‘Where there is a dispute, it should not be long before a reasonably clear picture emerges from Tribunal decisions about the content of the requirement that the government party negotiate in good faith. Thereafter, any such disputes are likely to proceed as relatively straightforward preliminary questions of fact. The liberal provisions of s 109 of the Act concerning the Tribunal’s way of operating should assist in that regard. In my view, it is likely that the Tribunal will devise methods for rapid determination of this preliminary issue so that time will not be unnecessarily consumed. The Tribunal is well placed to recognise and deal with delaying tactics should they be employed.’
Because of its concern about the manner in which previous good faith hearings had been conducted the Tribunal recommended a change in its procedures to ensure consistency with the Federal Court’s comments that as far as possible the critical issues for decision by it were to be properly identified before the hearing. In 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 p 30 para [50]) the Tribunal said:
‘[50] I have formed the opinion that in retrospect this matter should have been dealt with on the papers without the need for supplementary oral evidence or cross-examination. When the Federal Court decided that the s 31(1)(b) obligation was not only a mandatory requirement but a jurisdictional pre-condition to conducting an inquiry, it expressed the view that the Tribunal would devise methods for rapid determination of what is a preliminary jurisdictional issue. This comment was made in response to the concern that proceedings would get bogged down with evidence and argument. (Walley and Ors v Western Australia (1996) 137 ALR 561, 67 FCR 336 (FCR at 378).)
In fact the concern expressed in Walley about the length of time taken and substantial cost involved in deciding good faith issues has, in hindsight, been justified. It is not surprising that some of the early hearings required voluminous documents and lengthy submissions on the law. However, this trend has continued despite the fact that the law has been reasonably clear since at least early 1999.
Plainly s 36(2) of the NTA was inserted to try to overcome some of these problems, but in my opinion has not been of great help in narrowing the issues and ensuring that these matters are dealt with as simply and expeditiously as possible. In my experience when oral evidence and cross-examination have been permitted it has rarely added anything of significance to the documentary evidence before the Tribunal. Oral evidence and cross-examination may be necessary where there is a fact or facts in dispute which are critical to making a decision. Not surprisingly there is often a difference of opinion about what was said but it is usually not necessary to resolve these matters. The documents usually tell sufficient of the story.’

The Tribunal then proposed changes to its directions to ensure as far as possible that the issues in dispute were properly identified and proper consideration could be given to whether an oral hearing was necessary (para [51]).

On 14 August 2002 I directed that contentions and documents be produced by the Wong-goo-tt-oo native title party by 9 September 2002, the Government party by 23 September 2002 and a reply from the native title party by 30 September 2002. A hearing on the good faith issue if necessary was set for 8 October 2002 and the substantive hearing provisionally for 11 November 2002. To attempt to address the concerns expressed in Walley and WAPET/Hayes the direction to the Government party also required the preparation of a draft statement of facts, which could be adopted by the Tribunal if agreed by the native title party. The parties were to attend a meeting convened by the Senior Caseflow Manager of the Tribunal (Ms Sue Meaghan) on 2 October 2002 for the purpose of considering whether the Tribunal should hear the matter on the papers and to clarify and agree as far as possible the statement of facts and identify the facts in dispute (consistent with the procedures suggested in WAPET/Hayes). The parties were also to explain how a finding on any disputed issue of fact could be critical to the Tribunal’s decision. No reply was filed by the Wong-goo-tt-oo native title party and the meeting was held but no agreement reached.

At the Listing Hearing on 3 October 2002, the Wong-goo-tt-oo native title party sought an additional 21 days to reply to the Government party’s contentions and documents. They also submitted that an oral hearing was necessary and sought to have the Deputy Premier, The Hon Eric Ripper MLA, appear and be cross examined about, among other things, statements he made in Parliament. They also wanted to cross-examine deponents of three affidavits (Messrs Limerick, Foster and Athanasiou) filed on behalf of the Government party. They also sought the appearance of persons who had represented some of the proponents during the negotiations namely Larry Goodyear (Methanex Australia), Harry Wyeth (Burrup Fertilisers) and Vikas Rambal (Burrup Fertilisers) and asked for time to obtain instructions and file an affidavit from Wilfred Hicks (one of the registered claimants).
The Government party was content for the matter to be determined on the papers and submitted that the contentions and documents it had produced did not raise new issues and were in response to those of the native title party. It said that the inclusion of its Statement of Facts was designed to make the task of the Tribunal and native title party easier by summarising the entire negotiations in one document.
After a further hearing on 8 October 2002 the Tribunal granted the Wong-goo-tt-oo native title party’s application for an extension of time to reply to 24 October 2002, with a good faith hearing (if necessary) on 6 November 2002 and postponed the substantive hearing until 2 December 2002. The Tribunal directed:
‘(3)The reply will include:
(i)any additional evidence which the Wong-goo-tt-oo native title party intends to rely on in the form of sworn affidavits (it was foreshadowed at the Listing Hearing that evidence may be submitted from Messrs Larry Goodyear, Harry Wyeth and Vikas Rambal);
(ii)identification of the facts which are in dispute, the contrary facts which are asserted by the Wong-goo-tt-oo native title party and how a finding on those disputed facts will be critical to the Tribunal’s decision;
(iii)submissions on whether the Tribunal should grant leave pursuant to s 156(5) of the Native Title Act 1993 (Cth) to cross-examine witnesses who have provided evidence in affidavit form; and
(iv)submissions on whether the Tribunal should hear the good faith matter on the papers (s 151(2)(b) Native Title Act 1993 (Cth)).
(v)details of any summons requested pursuant to s156(2) of the Native Title Act 1993 (Cth), including a draft form of summons and reasons for the request.’
The Tribunal provided the following reasons for its directions:
‘The Wong-goo-tt-oo native title party did not comply with the Tribunal’s directions to provide a reply to the Government party’s contentions by 30 September 2002 which was to specify the facts in the Government party’s draft statement of facts which are agreed with or disputed. The draft statement of facts is comprehensive and includes material which the Wong-goo-tt-oo native title party and its advisers would be aware of and able to respond to relatively easily. Despite this no attempt was made to provide a reply to the Government party’s statement of facts. At the Listing Hearing on 3 October 2002, the Wong-goo-tt-oo native title party applied for an adjournment of the hearing set for 8 October 2002 and a further 21 days to file its reply. While the Wong-goo-tt-oo native title party’s failure to even attempt to comply with the Tribunal’s directions in relation to the draft statement of facts is unsatisfactory, the Tribunal has decided that it has little choice but to grant the Wong-goo-tt-oo native title party’s application. The failure of the Wong-goo-tt-oo native title party to comply means that the Tribunal is not in possession of sufficient information to decide if the matter can be dealt with on the papers pursuant to s 151(2)(b) of the Native Title Act. The completion of filing of contentions and documents will enable the Tribunal to make that decision. The Tribunal has also had regard to the statements from Mr Viner QC (counsel) and Mr Grantham Kitto (solicitor) for the Wong-goo-tt-oo native title party that they would not be in a position to properly represent their client at a hearing next week because of the need to consider the Government’s draft statement of facts and obtain instructions from their clients.
The Tribunal also considered whether it would be appropriate to combine the good faith hearing with the substantive hearing on 11 November 2002. The Tribunal does not exclude the possibility that this may be appropriate in some cases. However in this matter there are three native title parties but only one challenging negotiation in good faith. To involve all three native title parties in a full hearing which may only result in a decision that the Tribunal has no jurisdiction to make a determination will involve a waste of resources. The Tribunal is also aware that the applicants on the Yaburara & Mardudhunera native title group are to be considered by the Federal Court on 15 November 2002. This may result in a change in the registered native title claimants and affect the manner in which the Yaburara & Mardudhunera native title party’s case is conducted. To involve the Yaburara & Mardudhunera native title party in a substantive hearing before this issue is resolved may result in time and resources being committed to their unnecessary involvement in a hearing. This should not be interpreted to mean that the Tribunal will regard it as appropriate in all circumstances to adjourn future act arbitrations pending decisions of the Federal Court. In this case, however, the hearing of the matter is set down by the Federal Court and is likely to be resolved in a timely manner.
In circumstances where the good faith hearing has been delayed, and the composition of the Yaburara & Mardudhunera native title party is under consideration by the Federal Court the substantive hearing date will need to be put back to 2 December 2002. The Government party was to lodge its contentions and documents on the substantive issue by 23 September 2002. It has not yet done so but intends to file them on 7 October 2002. While this delay is not of great significance, as the good faith issue has not yet been resolved, it supports deferring the original substantive hearing date.
A hearing of the substantive issue on 2 December 2002 (provided the application is not dismissed because the Government party did not negotiate in good faith) should enable the Tribunal to make a determination by 23 January 2003 (6 months from the lodgement of the application). The native title parties will, from 7 October 2002, be aware of the Government party’s case and should be able to begin preparation of its contentions and documents for a hearing on 2 December 2002. The Tribunal notes that the future act is the compulsory acquisition (and extinguishment) of native title rights and interests and that because of the extensive evidence already provided in the Federal Court, the enjoyment of these native title rights and interests over the affected area and other matters referred to in s 39(1)(a) of the Native Title Act should be readily available for the purpose of these proceedings.’

Contentions and documents

The Wong-goo-tt-oo native title party provided:

statement of contentions and facts and supporting documentary evidence dated 10 September 2002;
response to Government party’s facts and contentions dated 24 October 2002;
identification of facts which are in dispute and the contrary facts which are asserted by the Wong-goo-tt-oo native title party dated 24 October 2002; and
affidavit of Wilfred Hicks sworn on 24 October 2002.

The Government party filed a Statement of Contentions and a Statement of Facts, a large number of supporting documents and the following affidavits:

James Macquarie Limerick (Director General of the State Department of Mineral & Petroleum Resources) sworn 5 August 2002;
James Macquarie Limerick sworn 23 September 2002;
Darren Foster (Media Advisor to Deputy Premier of Western Australia) sworn 20 September 2002;
Chris Athanasiou (Barrister and lead negotiator for the Government party) sworn 23 September 2002; and
Darren Corr (Policy Officer with the Department of the Premier and Cabinet’s Office of Native Title) sworn 5 August 2002.

It is with this background that I considered whether the issue could be dealt with on the papers and my approach to making findings of fact based on the documents tendered.

A decision ‘on the papers’ and leave to cross-examine witnesses

Section 151 of the NTA provides that the Tribunal may determine a matter ‘on the papers’ where the matter can be adequately dealt with in that way. While s 151 strictly refers to ‘a determination’ i.e. one of the two types of determinations (objection to the expedited procedure and future act determinations) which can be made under the right to negotiate provisions, the Tribunal accepts that the procedure can be adopted for other decisions (such as a challenge to jurisdiction) which arise in the course of an inquiry. This approach is supported by s 109(1) of the Act which says that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. Hearing a matter on the papers will assist the objectives of economy, informality and promptness and is appropriate provided the process is fair and just to all parties and is not inappropriate because of any cultural or customary concerns of the native title party (s 109(2)). Section 109(3) adds weight to the adoption of this procedure in appropriate circumstances because the Tribunal is not bound by technicalities, legal forms or rules of evidence. The requirement for the Tribunal to give leave to cross-examine witnesses (s 156(5)) is also a relevant supporting factor.
The Wong-goo-tt-oo native title party requested leave to cross-examine each of the deponents of affidavits filed by the Government party on the basis that:

procedural fairness requires cross-examination to test the veracity of the stated facts, the reliability and relevance of opinions and the credibility of the deponent in circumstances where acting on them will adversely affect the Wong-goo-tt-oo native title party’s legal rights under the Act; and
the affidavits are heavily based on hearsay, personal opinion and the opinions of others which should not be used to adversely affect rights without cross-examination.

They submitted that the matters should not be decided on the papers because of the multitudinous facts many of which are disputed and which the Government party has put its own slant on and in circumstances where the credibility of participants in the negotiations is in issue. The Tribunal should draw a distinction between this case and Walley in that the particular merit and circumstances of this case take it out of the ordinary.

Given ss 109(1) and 109(3) of the Act and that the Tribunal is an administrative body which as far as possible is required to carry out its functions in a non-adversarial way my general approach to the receipt of evidence is, unless it clearly has no relevance, to admit the evidence and allow the parties to comment on its relevance and the weight to be given to it (if any). Parliament has said that the Tribunal should be able to discriminate between evidence which is unreliable without resorting to an unduly technical approach to its receipt. Different approaches may be adopted by the Tribunal to making findings depending on the importance of the facts to the decision. It may choose not to act on hearsay evidence where there is a direct contest about its veracity from an opposing party or even serious concerns about it arising generally from the circumstances or other evidence. Parliament has said that the Tribunal is capable of making these judgements using its experience. It is also to adopt a commonsense approach to evidence as explained in McDonald v Director-General of Security (1984) 1 FCR 354 (cited in Ward v Western Australia (1996) 136 ALR 557 at 567). An example of the Tribunal’s approach in this matter is the way I have dealt with the affidavit of Mr Foster where I have declined to make what could be an important adverse finding against Mr Rory O’Connor an anthropologist consultant with the Wong-goo-tt-oo native title party, who Mr Foster was told breached the confidentiality of the mediation (see below). On the other hand I can see no impediment to accepting Mr Athanasiou’s statement that the Government party’s Statement of Facts is correct in relation to events in which he was involved or about which he had personal knowledge where they are not disputed. Where the Wong-goo-tt-oo native title party has filed affidavit evidence (from Mr Wilfred Hicks) I have considered it in making my findings of fact. Where the dispute arises based on what Mr Viner or Mr Kitto knew about the negotiations and which are included in the Wong-goo-tt-oo native title party’s identification of facts which are in dispute I have considered whether the conflict is critical to the decision. I have concluded that while there are some disputes of this kind, it is not necessary in the circumstances of this case for me to resolve them in order to make a decision. The documentary evidence is more than adequate to enable a decision to be made.
The original intention of the Tribunal in making directions was to see if the parties could agree on as many undisputed facts as possible. The approach adopted by the Wong-goo-tt-oo native title party did not enable this to happen. Their reply disputed certain of the Government party’s facts but did not formally admit those not disputed. They did not accept the accuracy or truth of the Government party’s facts without proof by sworn evidence even though they did not expressly dispute them.
Most of the facts asserted by the Government party are supported by documents and I have relied on them without the need for affidavits to verify them. Some of the asserted facts (particularly relating to what was said at meetings are not verified by documents nor deposed to in an affidavit (except by Mr Athanasiou in the way described above)). With the exception of those attested to by Mr Athanasiou I have not relied on the Government party’s statement of facts which were unverified by documents. Had they been critical to the decision I would have sought further evidence from the parties. For instance the Government party has not provided notes about all the Tribunal mediation meetings, so it has been difficult to verify each one of them in the absence of agreement from the Wong-goo-tt-oo native title party that they occurred. In most cases, however, it has been possible to, at least, ascertain that a meeting occurred from other documents or from the fact that the Wong-goo-tt-oo native title party disputed certain things that the Government party alleged happened at the meetings.
With the exception of some evidence in Mr Wilfred Hicks’ affidavit the Wong-goo-tt-oo native title party has not provided evidence which contradicts anything in the Government party’s affidavits. No evidence was forthcoming from Messrs Goodyear, Wyeth and Rambal to dispute Dr Limerick’s assertions about the urgency of concluding the negotiations. I have considered the conflicting statements in the affidavits of Mr Athanasiou and Mr Hicks but decided that it is not necessary to resolve any conflict in order to make a decision (see below).
For these reasons the Tribunal decided that leave to cross-examine witnesses should not be given and that the issue could be decided on the papers. The Tribunal decided on 29 October 2002 that the Government party had fulfilled its obligation under s 31(1)(b) of the Act. To assist parties, a summary of reasons was provided on 30 October 2002 on the basis that full reasons would be published as soon as possible.

Admissibility of evidence of confidential and without prejudice documents and discussions

The Tribunal rejects the Wong-goo-tt-oo native title party’s contention that it cannot have regard to confidential and without prejudice documents and discussions in making its decision. This issue was discussed by the Tribunal in WF98/267 & Ors (Western Australia/Evans/Anaconda Nickel & Ors, 15 July 1999 at pps 45-46) and the view expressed (without a formal decision) that it would seem unrealistic and undesirable for the Tribunal to be prohibited from hearing what is, on the face of it, evidence relating to the question of good faith negotiations. The Federal Court has also said that the reasonableness or otherwise of substantive offers or concessions may be relevant (see below), thus confirming that good faith negotiations are not confined to procedural steps. These offers or concessions would usually be covered by the general confidentiality and without prejudice requirements of the negotiations or mediation. From at least 20 April 2000 the Tribunal’s Procedures under the Right to Negotiate Scheme have provided that the confidential and without prejudice nature of negotiations is subject to the requirements of a hearing to decide if a Government or grantee party have negotiated in good faith (currently paras 4.6.1 and 4.6.2). The native title party (and their legal representatives) were aware that this was the Government party’s position at least by 19 December 2001 when they received a draft of the Negotiation Protocol. They made no alteration to this clause of the Protocol and raised no objection to the Tribunal’s Procedures. Further, no application has been made for an order prohibiting disclosure of any of the evidence under s 155 of the Act to maintain the confidentiality of this material in these proceedings.

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 under the new Act 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 (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 CJ Sumner, 10 December 1997 (at 13-21) and were considered (and modified in respect of whether there is an obligation on the Government party 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 party has 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]).
It is also now clear that the Government party’s 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 party is 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 party is 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 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).

The Government party’s negotiating position – economic benefits

Dr Limerick says that the Government party wishes to attract mineral and petroleum resource and downstream processing projects to add wealth and strengthen the economy. Mineral and petroleum resources are an integral part of Western Australia’s social and economic development and with sales of $27 billion in 2001 dominate the WA economy. A long term goal of successive WA Governments is to develop industries to add value by downstream processing of resources in WA. He says that one of the best ways of attracting investment into these industries is by the provision of infrastructure including land and that the Government party is establishing industrial estates for this purpose of which the proposed Burrup Industrial Estate and Maitland Industrial Estate are examples. Planning and development of these areas goes back many years involving a number of engineering, environmental, Aboriginal heritage and land use studies which have sought community input. He says there are factors which create a window of opportunity for the attraction of mineral and petroleum resource downstream processing projects on the Burrup Peninsula. He provided details of the expected economic benefits from each project if they proceed. For all future projects he estimates there will be $5.5 billion capital investment, a peak construction workforce of about 5 000, 540 direct jobs during operation and between 1000 to 3000 indirect jobs as well as consequent tax revenues to State and Commonwealth Governments. The Government party has committed $136 million towards multi-user infrastructure for the projects on the Burrup Peninsula.
The projects are all at different stages of consideration by the Government. Australian Methanol, Dampier Nitrogen and Japan DME have been assessed as being prima facie viable projects by the Government party and received backing from the Commonwealth Government by being granted Major Project Facilitation Status by the Commonwealth Minister for Industry, Science and Resources as a recognition of their contribution to the economy. Dr Limerick makes it clear it cannot yet be said that all the projects will necessarily, or even are likely, to proceed. His view is that there is a competitive international market for projects such as these and that if land tenure for them cannot be guaranteed, they may be lost. If some or all of these proponents are attracted he expects this will encourage further downstream processing projects to locate on the Burrup and Maitland Estates. There is pressure from the proponents on Government to resolve the land access issues expeditiously. Negotiations with the native title parties became more intensive in October 2001 because the five proponents were requesting a resolution of the land tenure issues. In January 2002, the Government party gave a commitment to three of the proponents that it would take a lead role in the negotiations. Dr Limerick is of the view that Western Australia will suffer adversely if land tenure issues cannot be resolved for these projects in that investors will not commit funds to progress projects unless they are confident that land tenure issues can be settled in a reasonable time and on reasonable terms.
None of this evidence is contested and could be accepted by the Tribunal. However, it is not necessary for me to make definitive findings about the matters deposed to by Dr Limerick to consider whether the Government has negotiated in good faith. It is sufficient for me to find that this sets out the Government party’s aspirations for the proposal. That is, it represents their negotiating position. The weight to be given to any economic benefits and public interest issues will be considered in the inquiry proper. At that time the native title party will have an opportunity to test the assertions made by the Government party and argue that the matters deposed to by Dr Limerick are not of sufficient weight to justify the doing of the future act. At this stage there is nothing to suggest that the Government is not genuine in its belief that there are substantial economic benefits that could flow from the establishment of these industrial estates. There is nothing to suggest for instance that the Government is motivated by anything improper. Indeed, the general community expects Governments to develop proposals to enhance the economy, improve standards of living and create employment. The Act is structured in such a way that if a party is not satisfied with the outcomes of negotiations, once they have been conducted in good faith, it can fall back on an arbitration inquiry to resolve the issue. It is obvious that disagreement with the Government party’s negotiating position does not mean that negotiations in good faith have not occurred. It is not helpful to confuse what is required at each stage of the process. Testing whether a Government party has negotiated in good faith for the purposes of jurisdiction is a very different exercise from that required of the arbitration inquiry.

The Government party’s negotiating position – existence of native title

The negotiations occurred in the context of a Federal Court hearing to determine whether the native title rights of the three native title parties who have overlapping claims over the relevant land should be recognised. The Government party’s position in those proceedings is that native title no longer exists. Each of the native title parties assert that they are the holders of native title. As no native title determination has been made, the Tribunal (and other parties) must accept that the claimed and registered native title rights and interests of all three native title parties exist for the purpose of these proceedings and may potentially be affected by the future act (WMC Resources & Anor v Evans (1999) 163 FLR 333 at 339-341 [24]-[31]). However, it follows from the Government party’s opposition to the claims in the Federal Court, that its basic negotiating position is that the proposed future act will have no effect on the enjoyment by the native title parties of their registered native title rights and interests or other factors in s 39(1)(a) of the NTA.
If the Government party is correct that there will be no effect on the enjoyment of native title rights and interests the Tribunal’s determination after an arbitral inquiry will be that the act may be done without any conditions to benefit the Wong-goo-tt-oo native title party. If the Wong-goo-tt-oo native title party is correct the Tribunal will need to consider evidence of how the enjoyment of its native title rights over the relevant area is affected and the other factors in s 39(1)(a) of the NTA and decide after weighing up evidence of economic benefits and the public interest whether the compulsory acquisition (which will extinguish any native title) should be permitted and if permitted whether any conditions should be attached to it. In its determination the Tribunal has no power to make a determination that compensation be paid but depending on the evidence, may determine an amount of money to be paid into trust pending a final determination of native title.
The Wong-goo-tt-oo native title party contends that Mr Athanasiou’s assessment of the likelihood of success of the Federal Court proceedings was an irrelevant and presumably illegitimate factor to be taken into account in considering what offers to make to the three claimant groups. They also complain that Mr Athanasiou made an assessment that the Wong-goo-tt-oo group was smaller than the Ngarluma/Yindjibarndi group and in fact part of the larger group and that this improperly influenced the Government party’s negotiating position. They assert that neither of the other native title parties are the traditional people for the Burrup or Maitland estate areas. These complaints involve a misunderstanding of the nature of negotiations in good faith. The Government party is entitled to make an assessment of the extent to which the native title parties’ registered native title rights are enjoyed over the area and the other factors in s 39(1)(a). The Government party must negotiate with each of the native title parties but is also entitled to have a view about their chance of success in having native title recognised (or more accurately a view about the extent to which native title is enjoyed over the area). In developing a negotiating position the Government party is also entitled to form a view about the relative numerical strength of each claimant group and their relationship to each other. This does not mean that they can refuse to negotiate with a group once their claim is separately registered, but their views on this issue may legitimately influence their approach to the negotiations and the type of offers they make. The Wong-goo-tt-oo native title party do not agree with the Government party’s position but that does not mean it is negotiating in bad faith.
The genuine adoption of a negotiating position which governs the approach of the Government party to settlement is no indication of a lack of good faith, unless it demonstrates improper motions or is so unreasonable as to indicate that it is not sincere in its desire to reach agreement. That is not the case here. It is important to recognise that it is not the role of the Tribunal in making a decision about whether the Government party has negotiated in good faith to make a final judgement about its negotiating position (unless it were to be so unreasonable on the face of it as to call into question whether it was genuine in attempting to negotiate a settlement). The respective merits of the parties’ positions will be considered in the inquiry proper.

Negotiations generally – meetings held

The Government party commenced negotiations with the Wong-goo-tt-oo native title party in early 2000 by forwarding letters to the Wong-goo-tt-oo and requesting them to make a submission as contemplated by s 31(1)(a) of the Act. The Government party refers to a letter sent to the Wong-goo-tt-oo native title party dated 25 January 2000 enclosing a notice of intention and inviting submissions. The Wong-goo-tt-oo native title party states that there is no evidence that it received the letter or the s 29 notice. The Tribunal relies on a presumption of regularity that correspondence sent would be received, but even in the absence of evidence of receipt there is no doubt that the Wong-goo-tt-oo native title party subsequently became aware of the proposal. In particular, there were additional meetings after that time, as well as a further letter sent from the Department of Land Administration (DOLA) dated 17 May 2000, by registered mail, referring to the notices of intention and inviting submissions.
Following the initial correspondence there were extensive negotiations between the Government party and the Wong-goo-tt-oo native title party, with nine formal ‘negotiation meetings’ held between 23 March 2000 and 3 April 2002. The meetings were held on:

23 March 2000 at Wickham
18 May 2000 at Wickham
1 November 2000 at Roebourne
9 April 2001 at Roebourne
11 July 2001 at Roebourne
16 October 2001 at Roebourne
14 November 2001 at Wickham
3 December 2001 at Point Samson
15 February 2002 at Point Samson
3 April 2002 at Roebourne

In addition to the negotiation meetings between the Government party and the Wong-goo-tt-oo native title party, the documents indicate that there were also meetings between the Wong-goo-tt-oo native title party and various proponents. Mediation meetings were also held by the Tribunal following a request for mediation under s 31(3) of the NTA by the Government party. The mediation meetings involving both the Government party and the Wong-goo-tt-oo native title party were held on:

12 November 2001
19 December 2001
11 January 2002
21 January 2002 at Perth
15 February 2002 at Point Samson
12 April 2002
28 June 2002

Details of these negotiation and mediation meetings are contained within various correspondence, although the outcomes of these meetings are not available for the majority of the matters. I can however infer that the meetings did occur to the extent that they are referred to in correspondence or on the basis that the Wong-goo-tt-oo native title party disputes certain statements made at those meetings. I accept that there were other negotiation and mediation meetings involving the other native title parties that are not referred to here.

The Government party largely took responsibility for organising negotiation meetings and providing logistical support to them, including the hiring/booking of meeting halls, catering and preparation of outcomes of meetings. The Wong-goo-tt-oo native title party requested that the Government party pay for the cost of its legal representation, including travel costs for the representatives to travel to meetings. I consider the issue in more detail below, but I note that the Government did contribute to the costs of the Wong-goo-tt-oo native title party for legal representation.

The negotiators

Commencing on 18 February 1999 correspondence from the Government party was forwarded to the Wong-goo-tt-oo native title party care of Kitto & Kitto, Barristers and Solicitors. On 11 February 2000, Kitto and Kitto wrote to the Department of Resources Development (DRD) advising that they were no longer acting for the Wong-goo-tt-oo native title party in relation to the Maitland Estate and Burrup Peninsula and that all correspondence should be sent direct to the Wong-goo-tt-oo native title party. Consequently, the Wong-goo-tt-oo native title party engaged directly with the Government party in negotiations until 5 November 2001 when Kitto & Kitto advised that they would be representing them again. Thereafter, negotiation and mediation meetings were attended by either or all of Mr Ian Viner QC, Mr Grantham Kitto and Ms Nikki Fyson representing the Wong-goo-tt-oo native title party, as well as key members of the Wong-goo-tt-oo native title party.
The Government party formed a State Negotiation Team (SNT) comprising Cliff Uren from DOLA; Darren Corr from the Native Title Unit of the Department of Premier and Cabinet; Paul Platt from the Office of Major Projects (previously DRD) in the Department of Mineral and Petroleum Resources; Antony Harvey from the Department of Training and Stephen Wright from the Crown Solicitor’s Office. Various other officers from those Departments also assisted the members of the State Negotiation Team. On 5 March 2002, the Government party appointed Chris Athanasiou, a barrister from Queensland, as its lead negotiator.

The October 2000 principles for agreement

On 18 February 1999 DRD wrote to the Wong-goo-tt-oo native title party advising of the intention to set aside land on Burrup Peninsula and east of Maitland River as Strategic Industrial areas. This was followed up by correspondence in March and December 1999. On 20 December 1999 the Government party reaffirmed its intention and provided a brochure on the proposed Industrial Estate. Further details of the proposal were presented to the Wong-goo-tt-oo native title party in correspondence and meetings from March 2000 through to August 2000. On 9 October 2000, the Government party provided its first principles for an agreement (‘the October 2000 principles’) to the Wong-goo-tt-oo native title party. These had as key elements:

heritage protection, including considering the implementation of appropriate procedures to ensure recognition and protection of significant cultural and heritage sites within buffer areas, identification of areas already covered by heritage surveys, advice to potential developers of the status of heritage work and requirements for Government and developers to comply with heritage and environmental protection legislation;

employment & training including making employment and training opportunities available for Aboriginal people, Government to seek agreement for proponents to adopt an Aboriginal training and employment scheme and Government to seek tenderers to provide Aboriginal employment and training opportunities;
business opportunities, including the Government providing information on tender opportunities to Aboriginal people, and ensuring the works tendered are appropriately advertised so that Aboriginal people have an equal opportunity to tender for such works;
naming rights with the Government to consult the local government authority for the adoption of an Aboriginal theme in naming streets, parks and other features within each subdivision area;
cultural / interpretative centre – Government party to consider the allocation of suitable land for the establishment of the centre;
Government to meet reasonable costs of meals and refreshments for negotiation meetings where appropriate; and,
a right to claim compensation for determined native title holders.

The first draft s 31 agreement

Following provision of the October 2000 principles there were negotiation meetings between the Government party and the Wong-goo-tt-oo native title party held in November 2000 and April 2001. Prior to the April meeting a preliminary draft s 31 agreement was forwarded to the Wong-goo-tt-oo native title party by DOLA. On 5 July 2001, a first draft of a s 31 agreement (prepared by the Crown Solicitor’s office) was provided to the Wong-goo-tt-oo native title party by the Government party. The first draft of the s 31 agreement included the elements of the October 2000 principles, save for costs for meals and refreshments during negotiations, and also included provision that access for traditional purposes would not be limited, except for safety reasons and as necessary to enable completion of development and to permit the grant of title to third parties. The draft agreement also provided that any compensation received under an ancillary agreement or otherwise, would be set off against any subsequent compensation claim and provided more specificity in relation to employment and training opportunities for the Wong-goo-tt-oo native title party, as well as the establishment of a consultative committee to review and discuss employment opportunities and cultural matters. Following a meeting between the Government party and the Wong-goo-tt-oo native title party on 11 July 2001, the s 31 agreement was amended and a second draft of the s 31 agreement was provided to the Wong-goo-tt-oo native title party on 31 July 2001. The second draft agreement was substantially the same as the first draft, with minor amendments and presented without marked up revisions. The proposal, as contained within the draft s 31 agreement, provided for extinguishment of native title, a separate agreement for each native title party and did not provide for any monetary benefits.
Following the October 2000 principles, and the draft s 31 agreements, there was a further negotiation meeting on 16 October 2001. The correspondence indicates that a response was sought from the Wong-goo-tt-oo native title party in relation to the draft s 31 agreement, but there is no evidence of a response being received.

The Agreement Proposal of 12 November 2001

The Government presented a further Agreement Proposal at the first Tribunal mediation meeting on 12 November 2001 with supporting documents. That proposal had as its key elements:

Access, with the native title parties entitled to access land within the industrial estates not granted to a developer or required by the Government party and subject to conditions (namely, to be limited to enable development to proceed or for reasons of safety or security, and not to bind any successors in title);
Consultative committee to be established with members from each of the native title parties (and prescribed body corporate of the native title holders if applicable) to consider employment and training opportunities and to be consulted on cultural matters, naming rights and environmental impact matters;
Monetary payments from the proponents to the native title parties based on the number of hectares to be leased to each proponent within the s 29 notice area, including up front payments and annual payments (payments from future proponents and annual payments to be held in trust pending a final determination of native title, and paid to a charitable trust for the benefit of the Roebourne / Karratha Aboriginal community if there are no determined native title holders for the area);
Government to grant freehold or leasehold on the Burrup, or as near as practicable, to the prescribed body corporate of the native title holders (or if not applicable, a suitable incorporated body representative for Aboriginal people in the Roebourne / Karratha area) for a cultural centre;
Employment, training and contracting opportunities including, the Government party and current proponents using reasonable endeavours to provide employment and training opportunities, making minor works available and ensuring that the native title parties have an equal opportunity to tender for major works;
Naming rights including the Government party consulting with the Consultative Committee about naming of streets, parks and other places in the industrial estates;
Environmental impact and cultural matters, including notification to the Consultative Committee of any firm proposal to develop land, consultation about management of the buffer area and cultural awareness training for employees of proponents;
Heritage protection including the Government party reminding proponents of their obligations under the Aboriginal Heritage Act 1972 (WA), and not conducting major ground disturbing activities unless the land has been the subject of an Aboriginal heritage survey;
Government to establish a reserve over parts of the unallocated Crown land for purposes of conservation and Aboriginal heritage with the Government to negotiate about joint management of the reserve with the prescribed body corporate;
Benefits to be set off against any compensation claim; and
State’s intention that negotiations be concluded by end of March 2002.

The November Agreement Proposal represented a significant improvement on the previous offer, as it included monetary benefits for the first time which would be offset against any compensation claim. Extinguishment of native title was still anticipated, as was a separate agreement for each of the native title parties. The proposal was partly based upon the conditions imposed by the Tribunal in the Wickham Point (Northern Territory of Australia/Bill Risk & Ors/Phillips Oil Company Australia, NNTT DF97/1, Professor Douglas Williamson QC, 29 September 1998) and Mungari (Western Australia/Strickland (Maduwongga) & Ors, NNTT WF97/4, Hon C J Sumner, 20 February 1998) both future act determinations involving compulsory acquisition in which conditions were attached to the proposal. Following the presentation of the November Agreement Proposal, there were additional negotiation and mediation meetings between the Wong-goo-tt-oo native title and Government parties in November & December 2001 and January 2002 in which the Agreement Proposal was discussed, together with provision for funding for the Wong-goo-tt-oo native title party and amendments to the Negotiation Protocol.
On 9 January 2002, the Wong-goo-tt-oo native title party provided a response to the 12 November Agreement Proposal raising alternative propositions which amounted to non-acceptance of the Proposal. The documents do not indicate that other native title parties responded to the Agreement Proposal but I can infer that they also did not accept the proposal.

The Alternative Agreement Proposal of 6 February 2002

On 6 February 2002 the Government party provided the Wong-goo-tt-oo native party with the State’s Alternative Agreement Proposal. The Alternative Agreement Proposal provided, inter alia, for:

Extinguishment of native title over the Burrup Fertilisers, GTL Resources and Plenty River areas of interest (and possibly over the Methanex and Japan DME areas if agreed), and non-extinguishment over the remainder of the industrial estates if an Indigenous Land Use Agreement was registered by certain dates;
Separate ancillary agreement with each claimant group with benefits to each native title party separately, but would be redrafted as one agreement with collective benefits if native title parties agree on a collective approach;
Compensation by way of upfront payments by the State, annual payments by the proponents to the native title holders (or the Roebourne Aboriginal Community); additional upfront payments from certain proponents, with those proponents able to enter into a separate ancillary agreement with the native title parties. Payments to be made to a charitable trust established for each native title claim group;
Granting of residential land in Karratha on the condition that the native title parties withdraw their objections under s 24MD(6B) of the NTA;
Government to grant freehold on the Burrup, or as near as practicable to the Burrup, to the prescribed body corporate nominated by the native title holders (or if not applicable, a suitable incorporated body nominated by the Roebourne Aboriginal Community) for a cultural centre, and will assist the native title holders to make applications for funding to investigate, develop and operate a cultural centre;
Naming rights, including consultation over the naming of streets, parks and other places in the Burrup and Maitland Industrial Estates;
Establishment of a liaison committee, the Burrup and Maitland Industrial Estates Liaison Committee, with representatives from the Roebourne Aboriginal Community and determined native title holders (if any) to receive reports on employment and enterprise strategies, discuss proposed developments, consult about management of the buffer areas and discuss any other issues regarding proponent operations;
Cultural awareness requirement for project proponents and employees, with project proponents to include as a condition of employment that employees complete a cultural awareness course;
Heritage protection including the Government party reminding proponents of their obligations under the Aboriginal Heritage Act 1972 (WA), and not conducting major ground disturbing activities unless the land has been the subject of an Aboriginal heritage survey;

Land management including consultation for management if there is a determination of native title over unallocated Crown land, or if there are no native title holders the Government party will declare a reserve to vest in the Conservation Commission with representatives from the Roebourne Aboriginal Community on the advisory board;
Employment and contracting opportunities, including the Government party making minor works, or appropriate training and supervision to carry out minor works, available to native title holders or Aboriginal persons, development of an Aboriginal Employment and Enterprise Strategy for major works which will include a minimum employment strategy and tendering on an open basis so that persons or bodies corporate on the List of Aboriginal Contractors have an equal opportunity to tender for major works. Proponents may elect to pay a Aboriginal Training and Enterprise Development Levy rather than develop and implement an Aboriginal Employment and Enterprise Strategy;
Benefits to be set off against any compensation claim; and,
Proposal subject to State Cabinet Approval and s 31 agreements with Burrup Fertilisers, GTL Resources and Plenty River being completed by 28 March 2002, the Methanex and Japan DME ILUA (or s 31 agreement) being signed by 1 June 2002, and the ILUA between the State, native title parties and the representative Aboriginal and Torres Strait Islander body being signed by 1 September 2002.

The 6 February 2002 Alternative Agreement Proposal was amended on 11 February 2002 with drafting changes made to the employment and enterprise development paragraphs of the proposal.

The February Alternative Agreement Proposal included the possibility of non-extinguishment over certain land, even though a consequence of compulsory acquisition is usually the extinguishment of native title. The Alternative Agreement Proposal also provided increased monetary payments, with separate agreements for native title parties although allowing for a collective agreement if requested by the native title parties.
Following the presentation of the Alternative Agreement Proposal, a further mediation meeting was held on 15 February 2002 and there was correspondence between the parties in relation to the preparation of a response and the terms of the proposal. The Wong-goo-tt-oo native title party provided a written response on 26 March 2002 entitled “Wong-goo-tt-oo Response to State Compensation Proposals – 15 February 2002” which contained their alternative proposal. I consider the development of the Government party’s next proposal (the Memorandum of Understanding (MOU)) in more detail below, and I accept the evidence of Mr Athanasiou that responses were received from the other native title parties that were vastly different from the Alternative Agreement Proposal. The Alternative Agreement Proposal was not accepted by the native title parties.

The Memorandum of Understanding (MOU) of 21 March 2002

On 21 March 2002 the Government party provided copies of a Memorandum of Understanding (MOU) to the native title parties and on 22 March 2002 met with Mr Kitto and Mr Viner and outlined the MOU proposal. At the time that the MOU was developed, the Wong-goo-tt-oo native title party had not yet responded to the Alternative Agreement Proposal. The MOU had as its key elements:

MOU to be between the State and all three native title parties;
Extinguishment of native title over the entire area of the proposed industrial estates and the Karratha Residential and Commercial land;
Grant of freehold title to an approved body corporate over the Burrup Non-industrial land, to include funding for a joint management study and development of a management plan, construction of infrastructure and buildings and funding for management of land for 5 years;
Upfront payments from the State and the current proponents;
Transfer of 5% of lots in the Karratha Residential and Commercial land on condition that the native title parties withdraw their objections under s 24MD of the NTA;
Ongoing annual payments from current proponents;
Agreement that payments and benefits constitute full and final settlement of any claim for compensation, with the native title parties to indemnify the Government party in relation to any claims for damages or compensation;
State to provide funding for employment service to support employment and training commitments, and funding for an Educational Foundation;
Funding for native title parties to establish and operate a corporation;
Heritage protection, liaison committee and cultural awareness training as per Alternative Agreement Proposal;
Housing, Roads and Transport issues to be addressed through the Roebourne Enhancement Scheme; and,
Agreement by 31 May 2002.

The MOU provided significantly more benefits to the native title parties, which benefits were provided in full and final settlement of any compensation claim. It also provided for extinguishment over the entire subject area and differed from the previous proposals as it was presented as a collective agreement to be entered into by all three parties.
Following the presentation of the MOU, there was a further negotiation meeting between the Wong-goo-tt-oo native title and Government parties on 3 April 2002. However, correspondence after the presentation of the MOU indicates that significant differences arose in relation to timeframes for a response, as well as fundamental differences as to the provisions of the MOU. It appears that negotiations began to break down at that time, with the Government party ceasing negotiations with the Wong-goo-tt-oo native title party on 28 May 2002 because of their failure to consider the offer in the MOU and the Government Party’s view that they had released confidential information about the MOU (see below). On 13 August 2002, the Government party withdrew its offer to enter into an agreement with the Wong-goo-tt-oo native title party. The documents also indicate that negotiations continued between the Government party and the other native title parties and the Tribunal has been advised in these proceedings that agreement has been concluded with those parties.

The Burrup Fertilisers agreement

Some of the negotiations referred to above occurred contemporaneously with discussions which were underway between the parties in relation to the Burrup Fertilisers project. The Wong-goo-tt-oo native title party concluded an agreement with Burrup Fertilisers, with a s 31 agreement between the Wong-goo-tt-oo native title party, Burrup Fertilisers, Landcorp and the State of Western Australia lodged with the Tribunal on 27 May 2002. The other native title parties have also reached agreement with Burrup Fertilisers.

Summary of the negotiations

Even a cursory examination of these various proposals, and most particularly the MOU, reveals that they were comprehensive and substantial. Among other things they dealt with compensation, Aboriginal heritage, environmental protection, employment and training, business development, a cultural centre and the establishment of a liaison committee.
The Government party commenced the negotiations, responded to queries from the Wong-goo-tt-oo native title party, attended most meetings involving the proponents and sought to attend all such meetings, requested the Tribunal to mediate and prepared a number of substantive proposals to the native title parties. The Government party also pursued responses from the Wong-goo-tt-oo native title party and, in my view, actively sought to reach a negotiated outcome with the Wong-goo-tt-oo native title party.
There can be no doubt from this chronology of events in the negotiations that there were substantial communications, discussions and conferences between the Government party and Wong-goo-tt-oo native title party with a view to reaching agreement. The Government party acted generally in accordance with the Njamal indicia. The Government party made substantial offers which it modified and improved on during the negotiations. There is a voluminous amount of documentary evidence which on the face of it supports a finding that the Government party negotiated in good faith. Any lapses in the Government party’s negotiating behaviour which the native title party may be able to point to will need to be of considerable seriousness and weight to justify, in the face of the documentary evidence, an adverse finding.
I now turn to the contentions of the Wong-goo-tt-oo native title party which they say demonstrate bad faith on the part of the Government party.

Alleged failure to negotiate separately with the Wong-goo-tt-oo native title party and proposal for a collective agreement

Contention: The Wong-goo-tt-oo has a right, independent of the other native title parties, to negotiate with the State (paragraph 60 & 101 of Wong-goo-tt-oo Statement of Contentions (SC)). The Wong-goo-tt-oo native title party contended that they have a right to negotiate separately from the other native title parties, and that the State as a matter of law must negotiate separately with each native title party. The Tribunal accepts that the obligation is to negotiate with ‘each’ of the native title parties (s 31 (1)(b) NTA).
Having regard to the documents and the facts that the Tribunal considers it can rely upon, it is clear that the Government party did enter into separate negotiations with the Wong-goo-tt-oo native title party. In particular, I note that all negotiation meetings were attended only by representatives from the Wong-goo-tt-oo native title party, the Government party or proponents and that agreement proposals, save for the 12 November Agreement Proposal, were provided by the Government party directly to the Wong-goo-tt-oo native title party (and separately to the other native title parties). I do not have copies of each of the proposals provided to the other native title parties and am unable to verify whether identical versions of each proposal were provided to each native title party. I am prepared to accept that the MOU was the same for all native title parties as it was presented on a collective basis, and having regard to the affidavit of Mr Athanasiou in relation to the response from the other native title parties to the February 2002 Alternative Agreement Proposal I am also prepared to accept the Alternative Agreement Proposal was the same for all parties. In relation to the 12 November Agreement Proposal, I have no evidence before me that all the native title parties were present at the mediation meeting when it was presented. However, I am prepared to accept that it was likely that the same agreement proposal would have been presented to all parties.

However, the situation with the Wong-goo-tt-oo native title party was that they had fundamental problems with the proposal in the MOU, including the proposal for joint management of benefits, and did not indicate any willingness to sign or accept the principles in it during April and May 2002. As already explained, negotiations were breaking down and eventually ceased at the instigation of the Government party on 28 May 2002. The failure of the Government party to involve the Wong-goo-tt-oo native title party in the further development of the MOU or the agreement based on it came about in these circumstances. It does not establish a lack of good faith given the circumstances of the negotiations as a whole. Also the Government party kept open the possibility of any native title party being able to ‘opt in’ to an agreement based on the MOU. This offer remained open until 13 August 2002 when the Government party’s offer to the Wong-goo-tt-oo native title party was withdrawn. There were also further discussions to attempt to resolve the impasse in June and July 2002.

No negotiation about s 33 NTA payments

Contention: State did not engage in genuine discussion with Wong-goo-tt-oo about matters described in s.33 of the NTA (paragraph 101 & 103 of Wong-goo-tt-oo SC). 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. No such payment can be made a condition of the Tribunal’s determination (s 38(2) NTA). The fact there was technically no grantee party in these matters does not mean that s 33 payments cannot be the subject of negotiations. 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 party must receive and consider a proposal in a manner which has regard to the particular fact of the case and to the merit 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]).
It appears that the matter of s 33 conditions was first raised by Mr Viner at a mediation meeting on 19 December 2001. The Wong-goo-tt-oo native title party has acknowledged that the issue was raised. In disputing the Government party’s Statement of Facts about that meeting it asserts that Mr Viner said that “Wong-goo-tt-oo was not happy with the dollar per hectare approach and wished the State to consider a percentage of revenue or benefits (to the State) approach.” Further, in the Wong-goo-tt-oo native title party’s 9 January 2002 response to the November Agreement Proposal reference is made to the Wong-goo-tt-oo request for a “proposal based on a percentage of the ‘cost benefit’ of each project.” The matter is also raised in the response to the February 2002 Alternative Agreement proposal entitled “Wong-goo-tt-oo response to State Compensation Proposals – 15 February 2002” (provided to the Government party on 26 March 2002) with Wong-goo-tt-oo seeking compensation by way of lump sum and “recurring payments by the State related to the ongoing derived benefits; e.g. royalties on minerals processed on the Estates (State and Commonwealth), taxes (payroll, GST, stamp duty), rates and charges and other revenue (e.g. land sales etc).”
By letter dated 15 January 2002 to Kitto & Kitto, Mr Wright provided a detailed response in relation to monetary compensation on the basis of economic value and a copy of Valuation Information was subsequently provided. He explained why such payments were inappropriate in this case. The Government party considered the approach suggested by the Wong-goo-tt-oo native title party, but didn’t agree with it and, consistent with good faith negotiations, provided reasons for its position. It also proposed another method of providing compensation to the native title parties and ultimately in the MOU proposed substantial financial benefits. There are no grounds for finding a failure to negotiate in good faith in these circumstances.

Unreasonable terms and conditions in MOU

Contention: Terms and conditions proposed by the MOU were so unreasonable in the circumstances that Wong-goo-tt-oo could not be expected to respond to them (paragraph 103 of Wong-goo-tt-oo SC). This contention is not particularised but I assume it refers to the proposal in the MOU that the benefits provided under it be paid to the three native title parties collectively. This issue has been dealt with above.

The Karratha residential and commercial subdivision

Contention: State required Wong-goo-tt-oo to agree to the compulsory acquisition of areas not the subject of the application, namely the proposed Maitland Industrial Estate and Karratha Residential subdivisional land (paragraphs 104, 105 & 114(5) of Wong-goo-tt-oo SC). The proposed Maitland Industrial Estate (both the Intercourse Islands and mainland area) was the subject of a s 29 notice but the mainland area is not part of the s 35 application. It is not clear why the mainland area is included in the contention unless the suggestion is that it should not have been included in the negotiations. This contention cannot be accepted as the area was the subject of a s 29 notice and originally proposed as part of the Maitland Estate.
With respect to the Karratha residential subdivision the contention is that the Government party unreasonably combined additional land in the negotiations, and required the Wong-goo-tt-oo native title party to agree to the compulsory acquisition for the proposed Karratha residential subdivisional land as part of the negotiations on the proposed compulsory acquisition for the industrial estates.
The Government party’s proposal to compulsorily acquire native title rights and interests over land in Karratha township for the purpose of residential and commercial subdivision is not covered by the right to negotiate provisions of the NTA. It is covered by s 24MD(6B) which requires the Government party to consult with registered native title claimants who lodge objections. The Government party sought to resolve this issue by including it in the MOU and agreement covering the Burrup and Maitland compulsory acquisition. As part of the whole package, agreement was sought from the native title parties to the compulsory acquisition of the Karratha land and the Government party proposed that on public sale land to the value of 5% of the available lots would be transferred to the body corporate to be set up by the native title parties.
There is nothing at law which says that an attempt by a Government party to resolve more than one future act in negotiations and include resolution of them in the one agreement is necessarily inconsistent with negotiation in good faith. Each situation needs to be examined on its own facts. In the overall circumstances of this case I have concluded that the Government party’s approach is not indicative of a lack of good faith. It was faced with a situation where the other native title parties were prepared to agree. Further, the Karratha land is in a similar location and the residential blocks will be needed if the proposed industries are established.

Failure to provide relevant information

Contention: State failed to provide relevant information, namely commercial, economic and planning information about the proponents (paragraphs 107, 109 & 114(1) of Wong-goo-tt-oo SC). Having regard to the documents, it is clear that the Government party provided the Wong-goo-tt-oo native title party with a significant amount of information about the proposed act, including brochures about the industrial estate, verbal presentations on the project, valuation information, copies of the Burrup Land Use and Management Plan, Maitland Heavy Industry Estate Public Environmental Review and the Karratha Area Development Strategy and a copy of the Access Economics Report. Some of these documents were provided at the request of the Wong-goo-tt-oo native title party.
The Wong-goo-tt-oo native title party contends that the State should have provided it with commercial, economic and planning information about the four proponents. In the document entitled “Wong-goo-tt-oo response to State Compensation Proposals – 15 February 2002”, provided to the Government party on 26 March 2002, the Wong-goo-tt-oo native title party stated that it wanted information on “project economics, production input, financial feasibility, design and construction, environmental and social impact, planning and commercial timelines, construction and production workforce, corporate structure and long term commercial goals; Aboriginal heritage considerations, short and long term commercial and employment opportunities and social benefits for the Aboriginal community, tenure terms including rents, rates and taxes and charges.” The Government party responded that the request was “belated and onerous” and I do not consider that response unreasonable.

In Risk (at 215-216), it was argued that a native title party was entitled to know which industries would be established on an industrial estate. O’Loughlin J rejected the argument:

‘Mr Robertson further submitted that a failure to identify the intended third parties robbed the native title claimants of opportunities to negotiate. If they did not know to what use the land would be put by a grantee, if they did not know whether their waters and fishing grounds would or would not be polluted or destroyed, if they did not know the future of their hunting grounds, they did not know how to negotiate. There is a short sharp answer to this submission. The act of compulsory acquisition will take away all these rights; hence the native title claimants have no need to know of these matters for all their native title rights and interests will be lost to them forever because of the act of compulsory acquisition. That is the base upon which they can commence to negotiate: a base of total loss.’

Given the nature of the future act, I do not think it was incumbent on the Government party to provide this information much of which would not have been relevant to the negotiations.

Inadequate resources/inequality of bargaining position

Contention: State failed to ensure that the Wong-goo-tt-oo were adequately resourced which resulted in a fundamental inequality in bargaining position for the Wong-goo-tt-oo (paragraphs 107, 110, 111 & 114(2) of Wong-goo-tt-oo SC). In addition, resourcing should have been on reasonable terms negotiated with the native title party. The first question to be considered is whether it is a requirement of negotiations in good faith for a Government or grantee party to provide funding and resources to a native title party. There are no judicial or Tribunal decisions on the issue and it could be argued that the obligation does not extend that far. Section 31(1) refers to negotiations, the definition of which is dealt with above. There is nothing in that definition to suggest that one of the parties which is obliged to negotiate in good faith should fund one of the others. The Act establishes native title representative bodies which have various functions, including to assist claimants in relation to future acts (s 203BB(1)(b)(ii)), and which receive funds from ATSIC to assist the claimants within their designated areas. This suggests that there are assistance arrangements in place for native title parties in future act negotiations and no obligation on Governments or grantees to contribute. Section 31(2) of the Act also says that the obligation does not extend beyond negotiation about the effect of the future act on registered native title rights and interests. This suggests that there is no obligation to negotiate about whether a native title party should be resourced by a Government or grantee party to conduct the negotiations. It would also be a difficult task for the Tribunal to determine when such funding was a requirement of good faith negotiations. For instance, there may be cases where a native title party is funded by a representative body under the Act and the grantee party is a small prospector with no external funding.
A contrary argument is that the funding of native title parties by Government and grantee parties to conduct negotiations has become common place and reasonable contemporary behaviour now means that appropriate funding should be provided. There may also be circumstances where a Government party had imposed tight and otherwise unrealistic deadlines which couldn’t be complied with if no funding assistance was provided. It is not necessary to decide this issue for present purposes as the negotiations went well beyond the limits imposed by s 31(2). Even if the obligation to fund exists in some cases, it is difficult to see how it would not have been fulfilled in this case.
The Government party contends that it (and the proponents) funded the Wong-goo-tt-oo native title party’s negotiation costs from about October 2001 onwards. In his affidavit sworn 5 August 2002, Dr Limerick says that the “funding provided (or agreed to be provided) to the Wong-goo-tt-oo native title party prior to 23 July 2002 totals about $82,000.”
The Government party refers to correspondence passing between the parties in relation to funding. In particular, on 29 November 2001 Mr Uren wrote to Kitto and Kitto offering a contribution of $5,000 to enable Kitto & Kitto to attend the mediation meeting of 19 December 2001 and to provide a response to the November Proposal. The letter notes that the offer was made because Kitto & Kitto had “raised a lack of resources as an impediment to [their] client’s ability to respond to the State’s proposal in a timely manner.”
Funding was also addressed in the Negotiation Protocol. Clause 11.2 of the Negotiation Protocol states that the Government party will provide financial assistance to the Wong-goo-tt-oo native title party to facilitate negotiations up to a maximum of $40,000, with clause 11.3 specifying payments within a number of categories, including airfares, accommodation, car hire, attendance fees, fees for external experts approved by the State, and other costs agreed with the State. The protocol also provided that Kitto & Kitto must provide an estimate of costs, and obtain State approval, before incurring costs. Costs were to be paid by the State in arrears upon presentation of an invoice or receipt. The Government party also referred to the MOU which provided that it would provide reasonable funding to the native title parties who entered into the MOU for the costs of negotiations between 1 April 2002 and 31 May 2002 and says that some funding was provided even though the Wong-goo-tt-oo native title party did not enter into the MOU.
The correspondence indicates that funding was provided to the Wong-goo-tt-oo native title party to respond to the 12 November Agreement Proposal, the February Alternative Agreement Proposal and the MOU. There were some differences between the Government and Wong-goo-tt-oo native title parties as to the acceptability of estimated costs for particular meetings and whether conditions for payment had been met but there is nothing in these which indicate a lack of good faith.
While it has been difficult to reconcile the amounts referred to in Dr Limerick’s affidavit with payments agreed as revealed by the correspondence there can be no doubt that the Government party made a contribution to the Wong-goo-tt-oo native title party’s legal costs and I regard this funding as an indication of its good faith.

Conduct of the Wong-goo-tt-oo native title party

The Tribunal has previously expressed the view that the negotiation process involves both of the obligations contained in s 31(1) of the NTA (Western Australia/Walley (Ngoonooru/Wadjari), NNTT WF97/5, Hon CJ Sumner, 25 March 1998 at 47.) Further, it has been accepted that the behaviour of a native title party is relevant to whether the other parties have negotiated in good faith. (See Walley v WA (1996) 67 FCR 366 at 381; 137 ALR 561 at 576; WA v Taylor (1996) 134 FLR 211 at 250 (Njamal); Western Australia / Strickland (Maduwongga & Ors/Crook, NNTT WF98/5, Mr K Wilson, 11 August 1998). The obligation to negotiate in good faith also now applies to a native title party (s 31(2)(b) NTA).
The Government party made no specific contentions in relation to the Wong-goo-tt-oo native title party’s negotiating behaviour and it has been possible to make a decision without giving weight to any adverse behaviour on their part. Nevertheless, there are some instances of what might be regarded as lapses in ideal negotiating behaviour.
Of most concern is the failure to provide a submission contemplated by s 31(1)(a) of the Act and to indicate the effect of the act on the enjoyment of their native title rights and interests and other matters in s 39(1)(a). Although, compulsory acquisitions involve extinguishment of native title, there is still the question of the extent to which native title rights are enjoyed in a practical sense and the effect of the act on the other factors in s 39(1)(a). The documents reveal that the request was initially made in a letter to the Wong-goo-tt-oo native title party dated 25 January 2000 from DOLA. A further letter was sent to the Wong-goo-tt-oo native title party from DOLA dated 17 March 2000 encouraging the Wong-goo-tt-oo native title party to make a submission in accordance with s 31(1)(a). On 17 May 2000, DOLA again wrote to the Wong-goo-tt-oo native title party inviting a submission on the proposal. It would have assisted the negotiations if the Wong-goo-tt-oo native title party had at some stage provided a submission in response to the invitation from the Government party made under s 31(1)(a) and provided details of the affect of the future act on the matters listed in s 39(1)(a). The Federal Court has said that s 39 indicates the scope of matters in respect of which negotiations may be conducted (Brownley v Western Australia (1999) 95 FCR 152 at [24]).
The Government party presented its initial proposal to the Wong-goo-tt-oo native title party on 9 October 2000, and provided two draft s 31 agreements in July 2001. By letter dated 24 October 2001, Mr Uren wrote to the Wong-goo-tt-oo native title party seeking, inter alia, feedback on the second draft s 31 agreement. There is no evidence, or contentions before me, to suggest that a response was received, save that the Wong-goo-tt-oo native title party wished their legal representatives to consider the draft agreement.

General conclusion

The question of whether the Government party has negotiated in good faith must be viewed from the negotiations overall. Lapses in ideal negotiating behaviour can occur in any negotiations and often do. Mistakes can and will be made. The Tribunal needs to take a reasonably robust commonsense approach to what is required and not impose some unattainable ideal standard. In this case, however, it is my view that the evidence overwhelmingly establishes the good faith of the Government party in the conduct of the negotiations. The complaints from the Wong-goo-tt-oo native title party arise from their misunderstanding of the scope of good faith negotiations under s 31(1)(b) and a failure to recognise that the Government party had a negotiating position which it genuinely adopted even though the Wong-goo-tt-oo native title party disagreed with it. In a procedural sense there is no doubt that the Government party negotiated with a genuine desire to reach agreement. It also shifted its original position significantly and in the end made substantial offers to resolve the matter. It made these offers despite only being obliged to negotiate about the effect of the future act on native title rights and interests and other matters in s 39(1)(a) of the Act and despite being of the view that native title no longer existed.

Decision

The Government party has negotiated in good faith with the native title parties as required by s 31(1)(b) of the Act and the Tribunal has jurisdiction to conduct an inquiry and make a determination.
Hon C J Sumner
Deputy President
12 November 2002