Western Yalanji Aboriginal Corporation RNTBC v Edmund James Fitzgerald

[2023] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

Western Yalanji Aboriginal Corporation RNTBC v Edmund James Fitzgerald and Another [2023] NNTTA 41 (30 November 2023)

Application No: QF2023/0003 & QF2023/0004

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

- and -

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

Western Yalanji Aboriginal Corporation RNTBC (QUD6008/1999)

(native title party)

- and -

Edmund James Fitzgerald

(grantee party)

- and -

State of Queensland

(Government party)

DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	30 November 2023

Catchwords:

Native title – future acts – s 35 application for determination – mining lease applications – power to make determination – whether grantee party has negotiated in good faith – grantee party has not negotiated in good faith – future act determination application dismissed

Legislation:

Aboriginal Cultural Heritage Act (Qld) s 23

Mineral Resources Act 1989 (Qld) s 281, Ch 6

Native Title Act 1993 (Cth) ss 29, 31, 33, 36, 38, 51, 60AB, 148, 240

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Cases:

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (Cox)

Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 93 (Xstrata Coal v Karingbal and Bidjara)

Brady on behalf of the Western Yalanji People #4 v State of Queensland [2013] FCA 958 (Brady v Queensland)

Northern Territory and Griffiths (2019) 269 CLR 1; [2019] HCA 7 (Griffiths)

John William Withers and Others v Ewamian People Aboriginal Corporation RNTBC and Another [2023] NNTTA 34 (Withers v Ewamian)

Kevin Alfred De Roma v Western Yalanji Aboriginal Corporation RNTBC and Another [2022] NNTTA 40 (De Roma)

Townson Holdings Pty Ltd and Joseph Frank Anania v Ron Harrington-Smith & Ors on behalf of the Wongatha People & Ors  [2003] NNTTA 82 (Wongatha and Wutha v Townson Holdings)

Representatives(s) of the native title party:

Julia Taylor, North Queensland Land Council; Patricia Lane of Counsel

Representative(s) of the grantee party: John Withers

Representatives(s) of the Government party: Emma Brunello, Crown Law; Julie Hookey, Department of Resources

REASONS FOR DETERMINATION

Background

[1]This is a decision on whether Mr Edmund Fitzgerald (the grantee party) has negotiated in good faith in accordance with s 31(1)(b) of the Native Title Act 1993 (Cth) (Native Title Act)

[2]On 5 August 2020, the State of Queensland (Government party or State) issued a notice pursuant to s 29 of the Native Title Act that it intends to grant mining leases ML100249 and ML100250 to the grantee party who is at all material times represented by Mr John Withers.  I will refer to ML100249 and ML100250 collectively as the proposed leases.

[3]The Western Yalanji Aboriginal Corporation RNTBC (Western Yalanji) is the native title party and holds exclusive native title rights and interests in trust for the Western Yalanji People #4 over the area of the proposed leases (see ‘Brady v Queensland QUD6008/1999).   The native title party was represented at all material times by North Queensland Land Council (NQLC).

[4]Following the s 29 notice, the negotiation parties, being the grantee party, the State and Western Yalanji, are required to conduct a good faith negotiation with a view to obtaining the agreement of the native title party to perform the future act. No agreement was reached and on 19 April 2023, the grantee party applied to the Tribunal for a determination that the future act may be done pursuant to s 38 of the Native Title Act.

[5]I have been directed to constitute the Tribunal to conduct an inquiry into this matter and determine if the future act may be done. Pursuant to s 36(2) of the Native Title Act and as clarified by Cox at [11], I cannot proceed to make a determination in this matter if I determine that a party, other than the native title party, has failed to negotiate in good faith as required by s 31(1) of the Native Title Act.  Western Yalanji allege that the grantee party did not negotiate in good faith, however makes no such assertion against the Government party.

[6]Having examined all the materials before me and for the reasons set out below, I am not satisfied that the grantee party negotiated in good faith. Consequently, I do not have the power to proceed to make a determination on the application and the application is dismissed pursuant to s 148(a) of the Native Title Act.

The proposed leases

[7]The grantee party’s application for the mining leases is made under Chapter 6 of the Mineral Resources Act 1989 (QLD) (Mineral Resources Act).  As set out in the notice from the State, ML100249 comprises an area of 87.79 Ha and is located approximately 38 km south-west of Lakeland in Queensland while ML100250 comprises an area of 34.48 Ha and is located approximately 25 km south-west of Lakeland.  The underlying tenure of both leases is the Bonny Glen pastoral lease which is held by the Gummi Junga Aboriginal Corporation (see De Roma [120]).

[8]In the ‘Details of Proposed Operations’ document provided to Western Yalanji, the grantee party proposes to mine gold and has applied for a 20 year term, with the possibility of renewal, although they provide the anticipated duration of the project is 7-15 years. The grantee party proposes to separate gold from the alluvial sand and gravel and intends to treat 50,000 to 130,000 loose cubic meters of alluvial river gravel per year, but notes this depends on weather conditions and water availability (See Cecchi affidavit, WYAC Doc 9, 180-181).

Material submitted for the Good Faith Inquiry

[9]In accordance with directions, the parties provided the materials summarised below.

Native Title Party:

a)Contentions dated 14 June 2023 (WYAC Contentions);

b)Affidavit of John Cecchi dated 13 June 2023 and annexing 68 documents comprising Annexure A1 (Cecchi affidavit);

c)Native Title Party Outline Chronology (WYAC Chronology);

d)Index of Annexures to the Cecchi affidavit (WYAC Index); and

e)Statement of Contentions in Reply dated 11 July 2023 (WYAC Contentions in Reply).

Grantee Party:

a)Document titled Grantee Party’s Answer to the Native Title Party Statement of Contentions on Good Faith (Fitzgerald Contentions);

b)Affidavit of John Withers dated 26 June 2023 (Withers affidavit);

c)Grantee Party Chronology and List of Authorities (Fitzgerald Chronology) in which the grantee party adopts the Western Yalanji chronology; and

d)Grantee Party Index of Annexures (Fitzgerald Index).

[10]In representing the grantee party, Mr Withers did not submit contentions per se and instead, document (a) from the above list was submitted.  This document is often quite difficult to follow and consists in large part of extracts from the Western Yalanji contentions, various pieces of correspondence and other cases interspersed with Mr Withers’ commentary.

[11]In regard to document b, the Withers affidavit, this provides at [3] that the material annexed to Cecchi affidavit is ‘is correct, and is also to be used by the GP to show that the Grantee Party has negotiated in Good Faith’. As such I will focus my consideration on the documents provided in the Cecchi affidavit rather than, for example, the documents accompanying the s 38 application which I note were not verified by affidavit. I note that it appears much of the correspondence annexed to the Cecchi affidavit was formatted to emphasise certain points one or both parties considered particularly important. Unless indicated otherwise, where I have quoted from the Cecchi affidavit I have retained the original formatting and emphases.

[12]Curiously, the Withers affidavit at [7] also states that prior to the application for the proposed leases, Western Yalanji were not presently or on a frequent basis exercising their native title rights and interests in the area.  I am uncertain on what authority Mr Withers may swear such a thing, however this view has some influence on his conduct during the course of the negotiation. Finally, I note that the grantee party has been represented by Mr Withers throughout this process and any reference to Mr Withers should be taken to be a reference to the grantee party.

Legal Principles for assessing negotiation in good faith

[13]The Tribunal has considered what it means to negotiate in good faith in the context of s 31 on a number of occasions. I examined the principles of good faith in De Roma at [16]-[31] and adopt these same principles here.

The Good Faith Negotiation Period

Preliminary Remarks

[14]This determination concerns negotiations surrounding ML100249 and ML10050 and whether the grantee party has negotiated in good faith as required by s 31(b) of the Native Title Act.  These two leases were highlighted in the De Roma determination, where it was determined that the grantee party had not negotiated in good faith. 

[15]As set out in [35] of De Roma, the leases subject to this determination, the ‘Fitzgerald leases’ as they were referred to, were negotiated alongside and in common with the De Roma lease.  As such, both De Roma and this determination share a large body of material in common, particularly in the form of correspondence from the representative of the grantee parties, Mr John Withers.  This correspondence presents views, positions and materials for the De Roma lease, and the two proposed leases considered in this determination.

[16]There is some divergence at the commencement of the negotiation process, with the proposed leases subject to this determination having a notification date of 5 August 2020 (Cecchi affidavit, WYAC Doc 1, 7), some seven months prior to the De Roma lease.  In this intervening time period, correspondence was exchanged between the parties, the content of which provided the starting point for negotiation on both these proposed leases and the De Roma negotiations as can be seen from paragraphs [41]-[43] of De Roma.

[17]In particular, these initial communications outlined the position of Mr Fitzgerald on a number of key matters.  Three of these pieces of correspondence, dated 17 September 2020, 2 October 2020 and 28 October 2020 (Cecchi affidavit, WYAC Doc 13, 201-205, WYAC Doc 15, 207-209 and WYAC Doc 17, 211-213) were included into the materials for, and were considered in, the De Roma determination. 

[18]A fourth piece of correspondence from 17 December 2020 (Cecchi affidavit, WYAC Doc 21, 220-223) was not included in the materials in De Roma, although it was referred to in materials from Mr Withers on numerous occasions in that determination.  The same regard can be had to this correspondence as to those others, which contributed strongly to the finding of a lack of good faith in the De Roma determination.

[19]From 15 March 2021, the negotiation process for the proposed leases under consideration in this determination and De Roma converged and all three proposed leases were negotiated in common within the same process.  All material considered in De Roma (including the correspondence that pre-dates the De Roma notification referred to above) is relevant to the current determination, the correspondence on each matter is effectively identical, as are the facts up until the De Roma determination on 31 May 2022.

[20]As such, I am satisfied the facts and consideration of De Roma apply, mutatis mutandis, to this consideration.  In view of this, I adopt the findings of De Roma in this matter, insofar as they apply to the time period ending on 31 May 2022 when the De Roma determination was made.  For ease of reference, I will refer to the period in negotiations prior to 31 May 2022 as the 'pre-De Roma' period.

[21]While the proposed leases examined in this matter and the De Roma lease were negotiated together, it is important to note they remain subject to separate future act determination applications, the grantee parties being separate legal entities.  As such, the proposed leases subject to this determination, and the period of good faith negotiations relating to their grant, were unaffected by the determination in De Roma. The good faith negotiation period in this matter did not reset or start anew following the De Roma determination.  Rather, I must consider the entirety of the process which has been underway since August 2020.

[22]Given this, the question at hand is whether the conduct of the grantee party in the time period between 31 May 2022 when this matter was de-coupled from De Roma, to the current time, has been sufficient to overcome the conduct prior to this which has been found not to be in good faith. A brief summary of the key events following the handing down of the De Roma decision can be found at Annexure A2.

[23]It is clear that the findings in De Roma leave much to be accomplished by the grantee party if they wish to establish they have negotiated in good faith.  The egregious nature of the conduct experienced in De Roma, and therefore in this matter until at least 31 May 2022, is rarely encountered in native title negotiations.  This conduct and the associated findings, remain a key component of this consideration and determination.

What Occurred During the Negotiations

[24]On 29 June 2022, following De Roma, Mr Withers wrote to Western Yalanji seeking to ‘start new negotiations’ on both the Fitzgerald and De Roma leases (Cecchi affidavit, WYAC Doc 44, 386) and attached correspondence to recommence the negotiation process.  This was followed shortly after by a marked up version of the ancillary agreement that had been under negotiation. 

[25]In these materials it is evident that the grantee party had come to terms with a number of the points that were previously disputed, particularly those related to drafting within the ancillary agreement.  There did remain however, a distance between the parties on 3 key issues, these being compensation, heritage matters and support for the consultation and consent process proposed to be undertaken by Western Yalanji.

[26]Given this determination is considering the conduct of the parties since the notification date of 5 August 2020, I review the initial material that relates to these proposed leases in the following sections.  I conduct this in order to understand the initial principles upon which Mr Withers sets out views and conditions he does, and to assist in an assessment of the contentions of the native title party.

Overview

[27]At the very outset of these negotiations, on 20 July 2020, Western Yalanji corresponded with the grantee party seeking details of the proposed operations and enclosing a draft ancillary agreement along with an invitation to comment on it.  Western Yalanji set out that it was offering an ancillary agreement on similar terms to the former Small Scale Mining Indigenous Land Use Agreement (SSM ILUA)[1] but with changes to some of the provisions (Cecchi affidavit, WYAC Doc 4, 104).  In providing this, Western Yalanji highlighted the substantive changes to the former SSM ILUA including those around compensation, heritage survey rates and meeting costs for a consultation and consent meeting.

[1] The SSM ILUA is an expired ILUA entered into with the North Queensland Miners Association to allow an opt in standard agreement for Small Miners in the region.  As noted in De Roma (footnote 1), the content of the SSM ILUA and the ancillary agreement bear strong similarity.

[28]The point of drawing attention to the similarity with the SSM ILUA as far as I can see, was simply to illustrate that the terms of the ancillary agreement should be familiar to the grantee.   

[29]The points I would highlight from this initial correspondence are that Western Yalanji proposed:

·compensation for impact on native title rights and interests being $2000 per annum indexed to inflation;.

·cultural heritage survey rates to ensure Western Yalanji’s costs are covered set at $2000 for the initial 15 ha and $100 per hectare thereafter with mileage to be set at Australian Tax Office rates;

·a contribution of $2500 plus GST for the Western Yalanji community consultation and consent meeting, with an ability for this to be payable on a pro-rata basis where other matters are addressed at the same meeting.

[30]This correspondence from Western Yalanji also sets out that should the proposed ancillary agreement not be acceptable and a negotiation on a new agreement be required, then it would seek to recover costs for negotiation pursuant to s 60AB of the Native Title Act.  This included a schedule of proposed fees if this were to be the case.

[31]While the ancillary agreement is not identical to the SSM ILUA and the SSM ILUA is not the subject of these negotiations, Mr Withers focusses extensively on its terms both pre and post De Roma. In Mr Withers’ initial response on 17 September 2020 (Cecchi affidavit, WYAC Doc 13, 201) (examined at [79]-[83] of De Roma), Mr Withers takes issue with the SSM ILUA, labelling it badly worded and ‘over costed’, a view which Mr Withers strongly expresses on a number of occasions in the lead up to and during the course of the negotiations examined in De Roma.  Instead, Mr Withers puts forward that the best option is to go through the right to negotiation process so that each prospective licence could be judged on its own merits (Cecchi affidavit, WYAC Doc 13, 202).  This sentiment seemed inexplicable given this is exactly what is proposed.

[32]This is similar to the view expressed by Mr Withers at [24] of Withers v Ewamian in which Mr Withers was also found not to have negotiated in good faith.

[33]The term ‘judged on its own merits’ is a recurring theme from Mr Withers.  At this point it is in effect a positioning statement, as is clear from the correspondence, putting forward that the terms of the SSM ILUA and therefore the proposed ancillary agreement, are unsatisfactory and should be moved away from.  Further to this, Mr Withers is proposing that the individual attributes of each proposed licence such as environmental issues, previous disturbance, the idea that the proposed licences are in an area on non-exclusive native title (which was shown to be incorrect in De Roma) (Cecchi affidavit, WYAC Doc 13, 203) and later, the extent to which native title was being exercised are part of the merits that should be considered when seeking to negotiate compensation for impacts on native title.

[34]Aside from the incorrect assumption on the non-exclusivity of the native title and any views a grantee party may hold regarding the exercise of native title, these points are not necessarily incorrect.  The manner in which they manifest in a negotiation and the approach of the parties is however, significant.

[35]Mr Withers shares his view that in negotiation matters such as this, ‘about 90% of the time is mostly wasted and spent on negotiating about funding arrangements (MONEY), payments to be made to the NT Party by the Grantee Party for Compensation and other non-mandatory issues for costs. (MONEY)’ (Cecchi affidavit, WYAC Doc 13, 203-204). 

[36]This leads to one of Mr Withers’ main points that remains significant in the negotiation process throughout.  As in De Roma, Mr Withers talks at length about those things that are mandatory and those things that are voluntary to negotiate.  This seems based on a statement made by Mr Withers that parties ‘forget about what the real meaning for negotiations has been noted as that has been stated and means that :- “Section 31(2) does not extend beyond negotiation about the effect of the Future Act has on Registered Native Title Rights and Interests”’ (Cecchi affidavit, WYAC Doc 13, 204).

[37]From this, Mr Withers makes a series of statements that I view as foundational to his negotiation position and one that is of relevance as the process unfolds both pre and post De Roma.  This is that if it is ‘proved that there is any [i]mpairment of such NT Rights and Interests of the N[T] Party, then Compensation may be payable by the Grantee’ and that this compensation should be calculated along terms that are legally provided for (Cecchi affidavit, WYAC Doc 13, 204), although the legal scheme Mr Withers proposes that guides this calculation is unclear at this point.  Mr Withers asserts the costs in the draft ancillary agreement have not been calculated in a manner ‘legally provided for’ and that the calculations have been arrived at without showing ‘that the Grantee will Impair the NP (sic) Party of their current enjoyment of their Native Title Rights and Interests within the area of both these ML's are situated’ (Cecchi affidavit, WYAC Doc 13, 204).

[38]There are four noteworthy points here:

·the views of Mr Withers on the meaning of s 31(2) of the Native Title Act and that it is restrictive;

·that it should be proven to the grantee party there is an impairment of the current exercise of native title rights for compensation to be payable;

·that this compensation should be calculated according to what the law prescribes or sets out; and

·that Western Yalanji, in putting forward the figures set out in the draft ancillary agreement, had not shown how the grantee would impair their current enjoyment of the native title rights and interests.

[39]Some of these views, such as those surrounding the impairment of the practice of native title rights and interests, were examined at length in De Roma, particularly at [125]-[129]. Whether these are able to be overcome in the post-De Roma period will be instructive in regard to whether good faith negotiation has occurred.

[40]To assist in understanding this, and in light of the contentions made by the native title party, I outline below the positions on the three main outstanding issues established in the early stages of the negotiation process by the grantee party below.  These positions remained effectively the same during the course of the process examined in the De Roma determination which, as mentioned, is adopted mutatis mutandis and continue to underpin the negotiations concerning these leases following the handing down of the De Roma decision.

Compensation

[41]At the commencement of the process, Mr Withers was of the view that if the prospective licences were to be judged on their own merits, then the compensation cost ‘would likely to be NIL’ (Cecchi affidavit, WYAC Doc 13, 204).  Following several rounds of document exchange, on 28 October 2020, Mr Withers arrives at an offer of $44 per annum for ML100249 and $16 per annum for ML100250 (Cecchi affidavit, WYAC Doc 17, 212).

[42]In addition to this Mr Withers outlines issues with the proposed windfall payment threshold.  This is the monetary figure of gross mine earnings over which a percentage of 2.5% of these gross earnings would be paid by the grantee party, as I understand it, in addition to the proposed annual payment.  The threshold amount proposed by Western Yalanji in the draft ancillary agreement was $750,000 for each proposed lease and for this figure to be indexed to inflation (Cecchi affidavit, WYAC Doc 4, 140).

[43]The correspondence from Mr Withers allows for a limited analysis of these monetary figures.  In particular, Mr Withers provides an estimate of earnings for each of the proposed leases of approximately $15 per cubic metre and that 90,000 cubic metres of earth could be expected to be processed per annum (Cecchi affidavit, WYAC Doc 13, 205).  Should this estimate be correct, gross earnings could be estimated to be $1.35 million per year for each of the proposed leases.  While this disclosure from Mr Withers is positive, some caution needs to be taken as there is no information on whether this would be a conservative or optimistic estimate, nor is there any other type of comparative analysis or figures to show how these estimates were arrived at.

[44]In any case, Mr Withers sets out that if a windfall is classed as unexpected grades of mineral, then it should be at least double of that which would normally be expected.  Based on this, Mr Withers proposed a threshold amount of $2.7 million for each proposed lease, this being double the expected earning set out above. (Cecchi affidavit, WYAC Doc 13, 205).

[45]At the commencement of the negotiation point Western Yalanji were seeking compensation for the impact on native title rights and interests of $2000 per annum, indexed to inflation.  This was reduced to $1500 per annum in correspondence dated 22 July 2021 (Cecchi affidavit, WYAC Doc 28, 232).  In the scheme proposed in the draft ancillary agreement, this would be the entire sum to be paid up until the $750,000 threshold amount of gross earnings was reached. 

[46]A fixed annual payment is a convenient way of calculating a compensation figure as it does not rely on any other inputs or revenue reporting.  It is however regressive, which seems to advantage the grantee party.  For example, at the threshold amount proposed by Western Yalanji, the $1500 annual payment would represent approximately 0.2% of gross earnings.  At the threshold amount proposed by Mr Withers, this annual payment would represent approximately 0.06% of gross earnings. 

Cultural Heritage Survey Costs

[47]Mr Withers also raises issues around costs for cultural heritage surveys (Cecchi affidavit, WYAC Doc 13, 205) which became a significant point in De Roma (see De Roma at [89], [105] and [145]-[148]).

[48]In his 17 September 2020 correspondence, Mr Withers commences discussion with the idea that there is no legal requirement for heritage surveys.  In an apparent concession Mr Withers then sets out that the grantee party requires both proposed leases be batched in the same survey and that the grantee party, while not agreeing with the cost schedule put forward as he ‘does not freely wish to give away, waste or be taken advantage of money-wise’ stated he did not wish to see Western Yalanji out of pocket.  In practice, this amounted to an acceptance of the mileage amounts proposed in the draft ancillary agreement plus a sum of $210, presumably for any or all of the Western Yalanji people who may take part in a heritage survey (Cecchi affidavit, WYAC Doc 13, 205).

[49]Mr Withers does advance on this initial offer but as can be seen in De Roma, the parties remained distant on this issue.

Contribution to Consultation and Consent process

[50]Mr Withers takes exception to the possibility of cost recovery by the native title party, putting forward that funds have been provided by the Commonwealth for negotiation processes in addition to such things as the consultation and consent meeting, which Mr Withers states he will not contribute to (Cecchi affidavit WYAC Doc 13, 203-204).  This continued to be Mr Withers’ view, an issue that was scrutinised in De Roma at [85]-[88] and [155]-[165].

[51]Mr Withers repeats these views in follow up pieces of correspondence (2 October 2020 and 28 October 2020).  In doing so, Mr Withers makes the point that if Western Yalanji are not funded in the way suggested, then they must be funded in some other way by government and accordingly, reiterates his unwillingness to cover these costs (Cecchi affidavit WYAC Doc 15, 208; WYAC Doc 17, 212-213). 

[52]This view was maintained despite Western Yalanji notifying Mr Withers that the PBC has obligations under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) for consultation with and consent from the Western Yalanji people (Cecchi affidavit, WYAC Doc 4, 106) and outlining that Western Yalanji are capable of seeking fees via s 60AB of the Native Title Act.  Mr Withers reiterated an unwillingness to contribute to these costs and on 28 October 2020, less than 3 months after the proposed tenements had been notified, stated ‘I declare this issue has been dealt with, even though we did not agree on the matter’ (Cecchi affidavit, WYAC Doc 17, 213).

Post-De Roma

[53]On 29 June 2022, and following the determination being handed down in De Roma, Mr Withers provides lengthy correspondence to recommence the negotiation process and signals a renewed set of negotiation positions. This correspondence establishes some conceptual foundations from which Mr Withers moves forward, these conceptual foundations being necessary to understand.

[54]In this correspondence, Mr Withers says the issues outlined in De Roma are taken into account and commits to follow with a marked up ancillary agreement which was provided on 11 July 2022.  Mr Withers acknowledges his error in regard to his views that the area of land upon which the prospective licences are situated is not exclusive native title (Cecchi affidavit, WYAC Doc 44, 384-385). 

[55]While this is a useful acknowledgement, it does look to be directed at a reframing of Mr Withers’ views on the SSM ILUA which he pivots towards in this second phase of negotiations.  Mr Withers in effect outlines that whatever the native title status of an area might be, the SSM ILUA catered for this in addition to other areas of contention such as heritage provisions.

[56]Given the earlier discussion this seems confusing, however a significant shift occurs in relation to the SSM ILUA from Mr Withers, despite it not being the subject of these negotiations.  Mr Withers states that his ‘original thoughts on the RTN matters for Mining Leases, is that any size Small Scale Miner (SSM) should have been offered the expired ILUA with it's up to date current CPI increases as the starting point for negotiations “(Bench mark)” by the NTP” (Cecchi affidavit, WYAC Doc 44, 385).  This seems ahistorical in that it contrasts sharply with the findings of De Roma at [133], the previously noted criticisms and effective rejection of the SSM ILUA by Mr Withers and the fact the first offer to the native title party was in fact nil.

[57]More significant is that, while this seems an advance on previously held positions, it is actually a reframing statement which can be seen to have greater significance as the negotiation process continues.

Compensation

[58]Given the nature of the material, it is difficult to understand the foundations upon which Mr Withers builds the offers for compensation to Western Yalanji.  I have sought to examine this in the following sections, broken into the areas that are the main components of Mr Withers’ rationale.

[59]It is worth noting at the outset, that Mr Withers states in his material that both the native title party and the Tribunal misunderstood the views of the grantee party and the nature of the compensation offer provided in De Roma (Cecchi affidavit, WYAC Doc 44, 388).  The explanation provided is unconvincing however, and entirely glosses over the fact that Mr Withers sought to entirely remove the term ‘compensation’ from the ancillary agreement in De Roma, despite the fact it is lawfully provided for (a concept Mr Withers returns to frequently), as well as the other circumstances examined in De Roma itself.  In any event, my focus in this section will be on the compensation offers of the grantee party in the post De Roma period.

Exercise of native title rights and interests

[60]In re-opening dialogue on compensation in his 29 June 2022 correspondence, Mr Withers puts forward the position that if Western Yalanji are not exercising their native title rights, then compensation should be less than what was being sought.  This mirrors Mr Withers’ pre-De Roma remarks concerning whether a native title party is exercising native title rights and interests, and what impact this might have. This erroneous position was addressed in De Roma at paragraphs [125]-[129].

[61]Even so, in this particular correspondence Mr Withers again places considerable emphasis on his view that Western Yalanji are not exercising their native title rights and interests or are not exercising them on a frequent basis.  This is linked to a point made on a number of occasions by Mr Withers; that there is no permanent running water in the area of the proposed licences. 

[62]If there is no permanent running water, Mr Withers states, then Western Yalanji are ‘definitely not currently exercising their NT Rights and Interests in these (2) ML areas, or on a frequent basis’ (Cecchi affidavit, WYAC Doc 44, 386). This view appears to be based on his own and others’ personal observations and Mr Withers goes so far as to declare this in affidavit form as part of his evidence for this inquiry (Withers affidavit [7]).

[63]The emphasis on this point appears to arise from a view that the Tribunal took into account statements by the native title party in De Roma that there was permanent water and members of the native title party accessed the area frequently (Cecchi affidavit, WYAC Doc 44, 385).  Statements to this effect may have formed part of the materials for the De Roma s 39 inquiry however this never proceeded.  As such, these were not material to, and were not considered as part of, the De Roma good faith determination.

[64]The effect of making these arguments appears to be to serve as justification for a low base of compensation offer.  This is demonstrated when Mr Withers goes so far as to say that the compensation offer would be higher if Western Yalanji were exercising their native title rights in the areas of the proposed tenements (Cecchi affidavit, WYAC Doc 44, 387).

[65]Views such as this may arise from Mr Withers’ interpretation of s 31 as examined at paragraph [36] of this determination. Given the manner in which this type of argument was addressed in De Roma, it’s difficult to understand how this would be considered a reasonable way of reopening negotiations.  

What is lawfully allowed for

[66]Mr Withers also begins to provide clarity on his second major platform for these negotiations: the notion that compensation should be based on that which is lawfully allowed.  What is meant by this becomes clear in Mr Withers citing Wongatha and Wutha v Townson Holdings by Deputy President Sumner as a basis for his positioning (Cecchi affidavit, WYAC Doc 44, 387).  Mr Withers states that in this determination the:

Tribunal explained that court determined compensation for impairment of native title rights and interests is based on the similar compensable interest test (ss 24MD(3)(b), 51(3), 240 NTA) which has as its basis the compensation payable to owners who hold ordinary title. Under s 123 of the Mining Act (= or s281 MRA 1989 QLD) ordinary owners or occupiers are not entitled to compensation based on the value of ore produced [29]–[60]. (Cecchi affidavit, WYAC Doc 44, 387).

[67]Mr Withers relies heavily on Wongatha and Wutha v Townson Holdings.  In particular, paragraph [29] appears to strongly inform the approach of Mr Withers and I quote a significant portion of it here for context:

[The representative of the grantee party] expressed the view that with respect to compensation and s 33 of the Act the central issue was one of land use and title and must relate to traditional Aboriginal land use and current exploration/mining land use. He argued that compensation should be based on the Government party’s rental schedule (and presumably that the tenement holder should pay rent to both the Crown and the holder or claimant for native title). He rejected payment of lump sum compensation or royalties for "philosophical" and "practical" reasons and said it would run counter to s 123 of the Mining Act. By way of explanation s 123 sets out the basis of compensation for owners or occupiers with an interest in the land and provides for it via the similar compensable interest test (ss 24MD(3)(b), 51(3), 240 NTA) for compensation for impairment of native title rights and interests as a result of a future act which does not involve extinguishment of native title. There is no provision for a Court to award compensation by reference to s 33 royalty type payments which can be voluntarily negotiated but cannot be made a condition of a determination (see above). Mr Clark’s position led him to propose compensation based on disturbance to the land not on the value of gold extracted. While this may not be a common way of providing compensation it was a negotiating position the grantee party was entitled to take.

[68]To a large extent, this passage is a summary of the views of that particular grantee party rather than a finding of the Tribunal, which is quite different to the manner in which Mr Withers presented these ideas.  Nonetheless, core elements of Mr Withers’ approach can be seen here such as those surrounding ‘use’ (for both native title and grantee parties) and the manner in which compensation should be viewed and calculated.  It also allows for some examination of how Mr Withers’ compensation offer was derived, which is not readily apparent at first glance.

[69]In presenting the ideas quoted at above, Mr Withers is in effect setting out that for the purposes of the grant of the proposed leases, the similar compensable interest test set out in s 240 of the Native Title Act is satisfied. Section 240 sets out that the similar compensable interest test is satisfied if the native title concerned is onshore and at s 240(b) that:

the compensation would, apart from this Act, be payable under any law for the act on the assumption that the native title holders instead held ordinary title to any land or waters concerned and to the land adjoining, or surrounding, any waters concerned.

[70]The law for the act as Mr Withers sets out, is the Minerals Resources Act with the relevant section being s 281. Section 281 of the Minerals Resources Act concerns determinations of compensation by the Land Court of Queensland and what a holder of ordinary title is entitled to compensation for. In general, these are the deprivation of possession, diminution of value and/or use, surface rights and monetary loss or expense that may arise. In essence then, Mr Withers is arguing that compensation in a negotiation setting should be calculated in a way that is based on, or pegged to, s 281 of the Minerals Resources Act.

[71]Section 51(3) of the Native Title Act provides a guideline for the determination of compensation when the similar compensable interest test applies, that is, when a determination is made by a court, person or body. This is not designed to fetter negotiation however and Mr Withers neglects to consider s 33 of the Native Title Act which sets out that:

33 Negotiations to include certain things

Profits, income etc.

(1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

[72]So while the Native Title Act has no provision for compensation to be determined by a Court or Tribunal to a native title holder on the basis outlined in s 33, provision is made for negotiation of future act agreements in this way. This is not a mandatory requirement and the parties may negotiate compensation on whatever basis they believe is a fair and reasonable exchange of value. It does, however, provide the option to the parties to base this calculation on profits, revenues or things that are produced. Similar issues were addressed in Xstrata Coal v Karingbal and Bidjara (see [316]-[332]).

[73]Along with Mr Withers seeming to misunderstand or ignore the differences between the negotiation process and the award of compensation by a Court, Mr Withers also fails to consider the De Roma discussion around this topic, particularly the reference to the Griffiths High Court decision on native title determination at para [140] of De Roma.  In Griffiths, native title holders were awarded compensation for economic and non-economic or cultural loss factors, with cultural loss being a significant component.  While Griffiths does illustrate that a broader view may need to be taken, it is not determinative here as it did not concern s 51(3) as this matter does. Compensation arising from s 51(3), including a cultural loss component, is currently being considered by the Federal Court in Yindjibarndi v State of WA & Ors (WAD37/2022).

Mineral Resources Act and SSM ILUA based calculation

[74]Consistent with Mr Withers’ views surrounding ‘use’ and what is legally provided for, Mr Withers reiterates the view that compensation to a native title party would be higher if they were currently exercising their native title rights and introduces the Mineral Resources Act based consideration for compensation (Cecchi affidavit, WYAC Doc 44, 387). 

[75]This is performed by setting out the compensation provided to the Bonnie Glen land holders pursuant to s 281(i) and (v) of the Mineral Resources Act being $350 per annum, not indexed to inflation. This, Mr Withers says, is based mainly on an area of operation at any one time of around 10 hectares (Cecchi affidavit, WYAC Doc 44, 387), with s 281 of the Mineral Resources Act being concerned with the footprint of an operation and the deprivation that arises from that as opposed to the entire area of the proposed licences. 

[76]As such, Mr Withers lays the foundation for a compensation offer based on his views of the similar compensable interest test through s 281 of the Mineral Resources Act, the limited area of use at any moment of the grantee party and the notion that it would be higher if Western Yalanji were exercising their native title rights and interests.

[77]Ultimately, Mr Withers makes a compensation offer that links the Mineral Resources Act based calculation with an SSM ILUA based compensation.  This compensation offer is set out as ‘$350 per Annum without CPI, and the Compensation cost later, to be as per the ILUA states with its CPI increases ([s]hould be about $650 for year 22-23) when the ACHI inspection has been done after given notice from the GP for the survey to be done’ (Cecchi affidavit, WYAC Doc 44, 388). 

[78]I interpret this statement to mean that an initial amount of $350 per annum is offered per the Mineral Resources Act based calculation, and this then will rise to a figure derived from the SSM ILUA after CPI is applied to its baseline figures and out to 2022-2023, being estimated to be $650 per annum.  This latter figure however, would not be able to be accessed until following a cultural heritage survey, with notice on whether or when this can proceed to be provided by the grantee party and at the grantee party’s discretion.  In any event, this latter SSM ILUA based figure was modified to $586.89 per annum on provision of the marked ancillary agreement.

[79]It is useful to recall that at this point, the compensation sought by Western Yalanji was $1500 per tenement per annum indexed to inflation upon grant of tenure (Cecchi affidavit, WYAC Doc 47, 490).

[80]As discussed previously, Mr Withers relied heavily on the argument that Western Yalanji were not exercising native title rights and interests in De Roma (see [126]-[129] for example) and the manner in which this was approached contributed to a finding of an inflexible and unreasonable approach.  Mr Withers also erroneously relied on the idea that it is only the physical act of mining in a confined footprint that is being compensated for (see De Roma [127]-[128]) which is echoed in the 10 hectare based calculation here. There looks to be no shift in these views.

[81]As set out in De Roma at [128] it is the grant of the mining lease that creates the set of rights over the land the grantee party can then exercise, and it is the grant of the proposed licence over the entirety of its area that impairs the determined native title and is the compensable act.  As such, it is the grant of the proposed leases over the entirety of their areas that is being compensated for. 

[82]Mr Withers calculates a ‘post heritage survey’ compensation based on the SSM ILUA of $586.89 per annum for the 10 hectares operational footprint.  If Mr Withers’ methodology for this smaller area is adopted and extrapolated over the entire lease area, given it is the entire area that is being compensated for, then it would appear that Mr Withers’ offer, at least based on his own methodology, should be more in the vicinity of $5152.30 per annum for ML100249 which is 87.79 Ha and $2023.59 for ML100250 which is 34.48 Ha.  In light of this, the compensation sought by Western Yalanji would appear to be reasonable.

Subsequent developments on Compensation

[83]Over the course of the next several months, the parties continued to exchange correspondence with Western Yalanji rejecting the offers and Mr Withers repeating the position with similar quantum for compensation, tied to the completion of Aboriginal heritage surveys.  Mr Withers did make significant movement in relation to the windfall threshold however, which he proposed on 11 July 2022 to be set at $880,000 per lease or $1,760,000 for two or more tenements in an integrated project (Cecchi affidavit, WYAC Doc 46, 423-424), although this was not agreed to.

[84]The 29 August 2022 Mr Withers’ correspondence expresses that he has ‘amended all past negotiations’, the effect of which is to accept clauses that were previously disputed ‘“EXCEPT” for anything that is in regards to costs’ (Cecchi affidavit, WYAC Doc 50, 500) and further labelled the SSM ILUA as the benchmark for compensation calculation.  The effect of this, as Mr Withers advises, is that except for cost related issues, the remainder of the Ancillary Agreement was agreed. 

[85]At various points during these exchanges, Mr Withers also makes the point that sufficient information and reasoning had been provided by the grantee party for Western Yalanji to accept the positions put forward and enter into an agreement without requiring further review (Cecchi affidavit, WYAC Doc 48, 502 and WYAC Doc 56, 517). 

[86]In the course of these exchanges, Mr Withers also repeats his rationale for his compensation offer, putting forward that it is more generous than would be awarded by the Land Court of Queensland ‘for the ordinary Landholder for land deprivation for the restricted 10 Hectares’ of operational area (Cecchi affidavit, WYAC Doc 63, 562).  Mr Withers also notes the grantee party will not change his mind about what was offered for compensation, however would offer an alternative option of $375.00 with annual CPI Increases from time of grant (Cecchi affidavit, WYAC Doc 63, 565).

[87]Mr Withers also continues to allege that the native title party they are not exercising their native title rights.  He says:

In case the NTP or others have forgotten our past comments, then I note again that the NTP are definitely not exercising any of their NT Rights and Interests in the 2 ML areas and the ML's do not have any Permanent water running throughout the ML's. If such ends up at a FAD, then the GP will be very disappointed if the NTP states that they are currently exercising their Rights and Interests in the area, as it would be totally misleading to the Tribunal again, like they did whilst at the FAD for ML 100258. Kevin De Roma V's Western Yalanji. 2022. (Cecchi affidavit, WYAC Doc 63, 562).

[88]It’s not entirely apparent how Mr Withers expects allegations such as this will generate good will and encourage agreement making.

[89]Alongside this, and based on the idea that the native title party has advised the Tribunal that the SSM ILUA is the benchmark for negotiations, Mr Withers complains that Western Yalanji have not engaged in the negotiation process for lesser costs than the SSM ILUA, expressing the view that any cost being asked by the Western Yalanji should never be higher than the SSM ILUA.  Mr Withers also complains to the native title party that in his view, it has not provided good reasons for the changes they seek (Cecchi affidavit, WYAC Doc 63, 562).

[90]Following this, and noting that each proposed future act and therefore determination made by the Tribunal must stand on its own merits, Mr Withers implies that the native title party has made special visits to proposed licences to make heritage finds (Cecchi affidavit, WYAC Doc 63, 563).  While this allegation isn’t specifically made to Western Yalanji on this occasion, the implication is clear.  If a native title party were to conduct this activity of their own accord however, which they would be entitled to do, it is perhaps indicative of a low level of trust towards a grantee party.

[91]Along with the allegations of misleading conduct, which are repeated in several pieces of correspondence, Mr Withers continues to present the view that the grantee party has provided full details of the reasoning behind the offers put forward and that Western Yalanji ‘have never given any evidence at all to suggest that it is mandatory for the GP to provide the high price asked by the NTP for Compensation, and also to pay the for the ACHI survey’ (Cecchi affidavit, WYAC Doc 67, 619-620).

[92]Ultimately of course, the parties were unable to reach agreement on this aspect of their negotiations.

Cultural Heritage

[93]The issue of cultural heritage costs followed a similar pattern to that of compensation.  Mr Withers re-opened negotiations via the 29 June 2022 correspondence and the marked up ancillary agreement that was provided on 11 July 2022.  This included a proposal for heritage inspection rates and the assumptions this proposal was based upon (Cecchi affidavit, WYAC Doc 46, 425-426, 457-458).

[94]After the Board of Western Yalanji had considered this, it provided a response on 29 August 2022 in which it noted a number of major costs it had previously sought had been removed such as an archaeologist, helicopter and COVID tests.  The calculation of Aboriginal Cultural Heritage Inspection fees was amended to a daily rate of $750.00 per person along with a $50 per person per day stipend for safety equipment, subject to annual CPI increase.  Food, accommodation and transport were pegged to ATO rates and an administration fee of 20% of the total cost was included (Cecchi affidavit, WYAC Doc 47, 469, 492).

[95]This prompted a strident response from Mr Withers on 20 October 2022 with Mr Withers expressing he has ‘amended all past negotiations’, the effect of which is to accept clauses that were previously disputed ‘”EXCEPT” for anything that is in regards to costs’ (Cecchi affidavit, WYAC Doc 48, 500) as noted at paragraph [84].

[96]As noted, in this correspondence Mr Withers alleges to the native title party that it misled the Tribunal in the De Roma inquiry, particularly in relation to the existence of permanent running water and the extent to which members of the native title group are exercising their native title rights and interests in the area.

[97]Because of this allegation of misleading conduct, Mr Withers then proposes to add an ‘Evidential Standards’ clause to the Aboriginal Heritage Cultural Protocol found at Schedule 4 of the draft ancillary agreements. This clause would appear to provide that where an inspection report noted a significant site but similar sites on other mining leases were not classed as significant, ‘one would be concerned that such finds may not meet ‘evidential standards’ to other professional advisors.’  Mr Withers continues by stating that where such site was subsequently ‘found as not to be of such significance to warrant an exclusion zone then any agreed cash benefit payment for impairment of Native Title Rights and Interest will be withdrawn from the agreement and the final payment for the ACHI Survey is not to be paid for by the GP’ (Cecchi affidavit, WYAC Doc 48, 501).

[98]It’s unclear from Mr Withers’ correspondence how this would work in practice and it seems almost calculated to offend. This is compounded when Mr Withers goes on to suggest that native title parties are ‘secretly’ visiting the area of proposed tenements ‘to try to find a site etc that would warrant an exclusion zone’ and implies that native title parties are ‘deliberately going out of their way to visit ML’s that are going through the RTN process’ to frustrate them with places of particular significance should a future act determination application be made (Cecchi affidavit, WYAC Doc 48, 501). Whether this occurs or not has no bearing on the good faith component of a future act determination application however it does reveal a particular attitude that Mr Withers brought to negotiations, particularly when read in conjunction with the comments discussed above at [90].

[99]On 18 December 2022, Mr Withers provided marked up versions of a draft ancillary agreement.  In the cover letter Mr Withers provided that the grantee party had ‘agreed to most of the changes that WYAC has asked for’ and refers again to the notion that the grantee party had explained the basis for this position on multiple occasions (Cecchi affidavit, WYAC Doc 56, 512). 

[100]A review of the attached draft agreements suggests however that while the grantee party accepted the updates made to Western Yalanji’s standard heritage agreement, as provided on 28 August 2022, there was no change on the key positions.  This amounted to a cultural heritage inspection fee to the total of $2,340 for ML100249 and $1,560 for ML100250 and an administrative fee of 15% of the inspection fee (Cecchi affidavit, WYAC Doc 56, 519-520, 542-543).  This remained the proposal in subsequent correspondence.

[101]Western Yalanji substantively responded on 7 February 2023 (Cecchi affidavit, WYAC Doc 62, 556). This correspondence noted that while, as indicated by Mr Withers, a number of matters had been agreed there remained several outstanding issues. In particular, Western Yalanji noted that the cultural heritage costs issue was not agreed as the grantee party’s proposal would cause financial loss to Western Yalanji.

[102]In correspondence provided on 3 March 2023, Mr Withers describes Western Yalanji’s comments regarding cultural heritage costs as misleading and provides that the grantee party has ‘offered far more costs for the ACHI surveys to be done for the NTP not to be at a financial loss, but also they are making a profit’ (Cecchi affidavit, WYAC Doc 63, 565-566).

[103]On 14 April 2023, Western Yalanji substantively responded to Mr Withers (Cecchi affidavit, WYAC Doc 66, 610) and advised that the cultural heritage costs issue remained not agreed as the grantee party’s proposal does not meet the costs of conducting surveys and would cause financial loss.  Western Yalanji advised that nevertheless they were willing to revert to their ‘older cultural heritage rate’ and provided a quote for the conduct of cultural heritage surveys.  This left the parties distant in their positions.

[104]As previously raised, the response from Mr Withers on 17 April 2023 levels the allegation that Western Yalanji had misled the Tribunal, had not given evidence as to why it is mandatory to conduct a cultural heritage survey and repeats the view that the GP had fully explained the details and reasoning of the proposal that was presented (Cecchi affidavit, WYAC Doc 67, 619-620).

[105]Ultimately, Western Yalanji responded to Mr Withers for the final time on 21 April 2023 advising that the grantee party’s proposed ACHI Costs are not agreed as this would cause financial loss to Western Yalanji (Cecchi affidavit, WYAC Doc 67, 629).

Consultation and Consent Process

[106]A contribution to a consultation and consent meeting remained an issue in the post-De Roma period.  Mr Withers initial position on this matter became clear upon delivery of the marked up ancillary agreement on 11 July 2022 in which it was proposed that, rather than being required to contribute, the grantee party may contribute on a pro rata basis to these meetings with ‘cost, location and logistical arrangements’ to be agreed by parties within 10 days of the proposed meeting date.  If agreement was not reached on these issues then ‘Parties are to consider other options’ such as mediation (Cecchi affidavit, WYAC Doc 46, 421).

[107]The Western Yalanji response on 29 August 2022 noted their revised drafting was based on similar terms to those which had been settled by the Western Yalanji Board for multiple mining lease matters (Cecchi affidavit, WYAC Doc 47, 467).  This drafting set out that the grantee party ‘must contribute to the costs of consultation and consent meeting for the Western Yalanji People as required in accordance with the PBC Regulations and that contribution is capped at $2,500 pro rata (GST exclusive)’.

[108]Recalling that Mr Withers’ 20 October 2022 correspondence sought to ‘amended all past negotiations’, the effect of which was to accept previously disputed clauses except for costs (Cecchi affidavit, WYAC Doc 50, 500), Mr Withers makes the further point that as the ancillary agreement had been largely agreed to, then consent should be easier to attain (Cecchi affidavit, WYAC Doc 48, 500).  Mr Withers suggests this should allow the agreement to be ‘executed in a timely manner, limiting the costs to do so’ (Cecchi affidavit, WYAC Doc 48, 500).

[109]Like in previous topics, Mr Withers’ 18 December 2022 correspondence maintains that positions presented have been fully explained and reverts to the previously articulated position whereby the grantee party may contribute on a pro rata basis to these meetings.  In this respect, I understand the term ‘pro rata’ to mean that costs would be shared between grantee parties if more than one agreement were being considered at a particular consultation and consent meeting.

[110]As in the pre-De Roma time period, Western Yalanji reiterate that neither NQLC nor itself are funded to hold such meetings and that it is unable to execute an agreement or the s 31 deed without authorisation from Western Yalanji people. Western Yalanji also state it is unable to hold such a meeting unless they know costs are covered and further reiterate obligations created by the PBC Regulations (See for example Cecchi affidavit, WYAC Doc 62, 558). 

[111]Western Yalanji also clarify that the contribution sought is capped at $2500 and that in practice, such a meeting would seek to consider a number of matters having the effect that any particular grantee party will not need to pay these full costs.  This effectively confirms the ‘pro rata’ position contained in Mr Withers’ drafting.  Western Yalanji further sets out that it requires a positive contribution from the grantee party towards the costs of a consultation and consent meeting and that Mr Withers’ drafting did not provide certainty this contribution would be forthcoming (Cecchi affidavit, WYAC Doc 62, 558-559).

[112]This topic then follows a familiar pattern.  Mr Withers provides the grantee party ‘does not wish to agree to waste his hard earned funds or time on anything other than if he has been given, and agrees to a firm quote from the NTP regarding this cost, and definitely prior to the event happening, and a firm date of when the meeting is to happen’ (Cecchi affidavit, WYAC Doc 63, 564).

[113]Mr Withers then questions why a full meeting should be held for the remaining outstanding issues, repeats the view that Western Yalanji and NQLC are publicly funded to conduct such meetings in support of his view that there should be a minimal need for consultation and consent processes and support, and effectively rejects the notion that a grantee party will not generally be required to pay the full cost set out for a consultation and consent meeting despite previously agreeing to the ‘pro rata’ drafting in the ancillary agreement (see paragraph [106]). 

[114]Mr Withers’ justification for this seems thin; that due to a potential long lead in time, the idea that the Western Yalanji people may not consent to the agreement and because the meeting is already funded, any contribution ‘will be wasted’ (Cecchi affidavit, WYAC Doc 63, 564).  Given previous agreement to a pro rata arrangement, such positions seem almost designed to avoid the possibility of agreement.

[115]Mr Withers also disputes the interpretation of s 60AB, observing that the wording of the clause is that a registered native title body corporate ‘may’ charge a grantee party and proposing it is focussed on large scale mining and processes. This may be one interpretation, however it is not provided for in the Native Title Act. Rather, on a plain reading of s 60AB, it provides a blanket head power while giving flexibility for a registered native title body corporate to not seek these costs should it choose not to.

[116]Western Yalanji continued to advise it was legally required to hold a consultation and consent meeting if the proposed agreement fell outside their standing instructions and it was not able to agree to notify the Western Yalanji People of their intention to call a consultation and consent meeting unless it was known that costs were covered. Western Yalanji again noted that in practice it was attempted to have multiple matters considered at a consultation and consent meeting in order to reduce costs on a pro rata basis (Cecchi affidavit, WYAC Doc 66, 614).

[117]This was not met with anything particularly positive from Mr Withers, and ultimately the parties failed to reach agreement on this topic.

NIGF Contentions

[118]In contending the grantee party has not negotiated in good faith, Western Yalanji frame their contentions in reference to the Njamal indicia.  In doing so Western Yalanji allege the grantee party has:

·adopted a rigid non-negotiation position;

·engaged in conduct that harmed the negotiation process; and,

·failed to do what was reasonable in the circumstances.

[119]The primary contention of Western Yalanji is the adoption of a rigid non-negotiable position which it is contended the grantee party adopted in relation to the topics of compensation, cultural heritage monitoring and agreement authorisation support.  Western Yalanji further contend that despite the finding that Mr Withers had held a rigid and intransigent position in regard to these three areas in De Roma, which contributed strongly towards a finding of a lack of good faith, there was no meaningful advance on these positions in the post-De Roma time period (Western Yalanji contentions [101]).

Rigid non-Negotiation Position

Compensation

[120]Western Yalanji note they are entitled to compensation pursuant to the Native Title Act and, with reference to Griffiths, contend this contains components of economic and cultural loss of which the economic cost may be modest (WYAC contentions [102]-[103]).  Perhaps in light of this cultural loss component of Griffiths, Western Yalanji points out that Mr Withers persistently asserts there will be no impact on native title and that Western Yalanji are not exercising their native title rights and interests.  Further to this, Western Yalanji assert that because Mr Withers was not satisfied by ‘satisfactory evidence’ of Western Yalanji people exercising their native title rights and interests, he has continued to put offers forward that the grantee party knew would be rejected (WYAC contentions [104]).

[121]Western Yalanji contend there is ample evidence of the grantee party’s approach in the correspondence, commencing with the view that compensation should be nil and continuing with the circumstances examined in De Roma.  This included erroneous assertions regarding the nature and scope of native title rights and interests in addition to the mistaken view that only mining activity had an impact on these rights and interests, as opposed to the grant of the title (WYAC contentions [104]-[114]).

[122]This, Western Yalanji contend, continued after De Roma with the grantee party continuing to express that Western Yalanji do not access the area or exercise their native title and that this was a major component in the grantee party presenting offers of compensation considered low by Western Yalanji.  Additionally, the grantee party continued to hold an erroneous view of what the future act actually is and made an offer that ‘full’ compensation would be payable following the completion of heritage surveys. 

[123]Western Yalanji also assert the grantee party expressed views in florid and offensive terms that they contend was calculated to offend (WYAC contentions [115]-[116]).  This, Western Yalanji say, demonstrates an unwillingness to engage in meaningful negotiations.

Cultural Heritage Inspection Costs

[124]In focussing on cultural heritage matters, Western Yalanji contend that matters that affect registered native title rights and interests are central to s 31 negotiations processes (WYAC contentions [117]). This infers that being an area of exclusive native title determination, heritage and protection of it is a component of these native title rights and interests and is therefore subject to negotiations.

[125]Further, Western Yalanji contend that an ancillary agreement arising from the right to negotiate process would be a native title agreement for the purposes of s 23 of the Aboriginal Cultural Heritage Act2003 (Qld) (Aboriginal Cultural Heritage Act).  Provided the provisions of such an agreement are followed, Western Yalanji contend this would enable the grantee party to meet their duty of care under the Aboriginal Cultural Heritage Act (WYAC contentions [119]-[123]).

[126]Western Yalanji also contend the grantee party refused to recognise that cultural heritage is an important issue for the native title party and points to the manner in which this issue was addressed in De Roma (WYAC contentions [125]-[130]).  Western Yalanji contend the grantee party has not retreated from this attitude and has incorporated new requirements such as incorporating other professional advisors’ evidential standards in regard to heritage finds (WYAC contentions [131]).

[127]Having failed to reach agreement on these matters, Western Yalanji assert the communications of the grantee party ‘objectively establish’ that the grantee party was more focused on having a determination that the future act could proceed, implying that agreement was actively avoided in favour of seeking a determination by the Tribunal that the future act may proceed, and thereby avoid compensation and cultural heritage payments (WYAC contentions [130]). 

Consultation and Consent Meeting

[128]Western Yalanji contend that as s 60AB of the Native Title Act provides for the charging of costs incurred in negotiating a s 31 agreement, it did not act unreasonably in seeking a contribution from the grantee party towards the authorisation of the ancillary agreement (WYAC contentions [132]).

[129]Western Yalanji points out that it was not seeking to recover costs of time spent in the negotiation and client instruction process (WYAC contentions [134]).  It also pointed out that agreement on the compensation rates proposed by Western Yalanji would avoid this cost entirely, given NQLC had a pre-existing authorisation for agreements with this set content.

[130]The native title party acknowledge that refusal to fund negotiating costs may not in itself amount to an absence of good faith but in doing so, reference De Roma at [165]-[167] (WYAC contentions [135]). This in part points to the fact that the determinations of the Tribunal that have developed this view pre-date the legislative empowerment of s 60AB and were formulated in a time when it was a reasonable expectation that representation support would be provided by the Commonwealth.

[131]Mr Withers held the view, or at least held the view during the De Roma period, on these proposed leases that NQLC or Western Yalanji received funding for consultation and consent meetings (WYAC contentions 136]).  Western Yalanji advised on a number of occasions that it did not, however Mr Withers maintained this position and refused to agree to any contribution.  This it says, demonstrates a rigid position that is inconsistent with a genuine desire to reach agreement (WYAC contentions [137]-[139]). 

What does the Grantee Party Contend?

[132]The grantee party does not provide formal contentions as such, rather his responses are set into the contentions document of the native title party. These responses repeat to a large extent the material contained in the Cecchi affidavit which is the correspondence exchanged between the parties.

[133]The general point made by Mr Withers is that the grantee party, as represented by Mr Withers, negotiated in good faith.  This can be seen, he says, in the fact that a number of the issues scrutinised in De Roma were agreed, mainly those of drafting, and new positions were presented in the post De Roma time period (Fitzgerald contentions 2).

[134]In developing his argument, Mr Withers repeats his view that the Western Yalanji are not exercising native title rights and interests, going so far as to provide an affidavit to this effect (Fitzgerald contentions 2, Withers affidavit [7]).  Mr Withers also states the view that the grantee party has been pressured to negotiate on issues that are not related to the effect of the future act on the registered native title rights and interests and by focussing on compensation and heritage matters, that the ‘NTP are using misleading trivial and frivolous issues to make it look like the GP has not negotiated in Good Faith’ (Fitzgerald contentions 8).

Consideration

[135]In making this assessment I have outlined the earliest pieces of correspondence from Mr Withers which established views and positions examined in De Roma for these proposed leases, as well as those pieces of correspondence that followed the De Roma determination.  The purpose of this has been to understand whether there was a marked change in approach from the grantee party or if indeed, as Western Yalanji contend, a rigid and non-negotiable position was taken.

[136]The determination in De Roma marked a very obvious inflection point for Mr Withers at which a very new negotiation approach may have been engaged.  There was some movement, with the majority of the text of the ancillary agreement being agreed and some modification of the windfall threshold.  The agreement to the text is positive, however it must be remembered from De Roma that Mr Withers objections to what would normally be considered standard and non-controversial drafting were exceptionally unreasonable, to the extent that parts were noted to be to the detriment of his own client (De Roma [143]).

[137]In my view however, the fundamental basis of Mr Withers’ positions, views and approach did not change, even from the outset of the post-De Roma phase of negotiation.  I acknowledge there is an effort to pivot towards new ideas, however this looks to be more for the purpose of justifying the same views as in De Roma coupled with an approach that did not substantially differ from that which went before it.

[138]The first issue concerns the exercise of native title.  In the first instance, Mr Withers does acknowledge the error regarding the nature of the native title rights and interests in that it is exclusive.  This would seem significant given Mr Withers’ initial view that as non-exclusive native title was one of the criteria that, judging the proposed leases on their own merits as Mr Withers put it, contributed to an initial compensation offer of nil (see Cecchi affidavit WYAC Doc 13, 203). 

[139]At the commencement of the process in 2020, Mr Withers opens his account, in the 17 September 2020 correspondence, with the idea that in putting their compensation position forward, the Western Yalanji have not shown that the grantee party will impact native title rights and interests.  This continues in De Roma to the extent that Mr Withers openly asserts Western Yalanji are not exercising their native title rights and interests in an effort to justify grantee party positions on compensation.

[140]These things, along with the view held by Mr Withers that only the operational footprint of mining activity is compensated for, were dealt with fairly unequivocally in De Roma at [125]-[129]. It is vexing then, that Mr Withers continues with these arguments in the very first piece of correspondence following De Roma and continues at some length to generate an argument that Western Yalanji are not or are seldomly exercising their native title rights as justification as to why a higher level of compensation is not acceptable.

[141]It is difficult to understand how this could be said to be an approach that is conducive to agreement making, in the very first instance communicating to the native title party that their case is, if you like, is illegitimate.  This continues through the various pieces of correspondence which, like in De Roma, assert the Western Yalanji people are not exercising their native title rights and interest and have not proven the grant of the proposed licences or the act of mining will impact upon their native title. 

[142]As Member Cooley sets out in Withers v Ewamian at [82]-[83], Mr Withers appears to misunderstand the purpose of these negotiations. This is to gain the agreement or consent of the native title party to the future act, being the grant of the proposed leases. This is performed virtually on a daily basis by grantee and native title parties around Australia, bolstered by the good faith provisions of the Native Title Act.  Good faith is far from onerous however it does require a particular approach, one that generally excludes conduct that would harm a negotiation process and ensuring that a reasonable approach is taken.  The approach of Mr Withers lacks these key elements.

[143]Perhaps as importantly however, is that this shows little change from the De Roma stage of the negotiation of these proposed leases to the post-De Roma stage, despite these issues being specifically addressed and despite the very obvious need for a refreshed approach.

[144]Mr Withers works hard to develop a rationale for the compensation offer.  In summary, it is based on the ideas of what is lawfully allowed for, the area of use of the land in the mining footprint, that Western Yalanji are not or are seldom exercising their native title rights and interests, that this is somehow linked to the presence or otherwise of permanent running water and that given the asserted lack of exercise of native title, that Western Yalanji have not shown to the grantee party how their native title rights and interests would be impacted in any case. 

[145]This generates a compensation position derived from a reliance on the similar compensable interest test through determinations via s 281 of the Mineral Resources Act and then the SSM ILUA with CPI added to its base figures (post heritage surveys) over a 10 hectare mine footprint. 

[146]This calculation and offer ignores key factors. Firstly, the similar compensable interest test is in regard to what a Court or Tribunal can or cannot award in compensation in relation to mine earnings; secondly that negotiations are not limited in this way as evidenced by s 33 of the Native Title Act; thirdly that the compensable act is the grant of the proposed leases over the entirety of their areas; and fourthly, that native title compensation calculation may include further elements as highlighted in Griffiths and as indicated in De Roma at [140].

[147]I would also observe the pivot towards the use of the SSM ILUA plus CPI as the basis for a portion of the compensation position seems cynical.  Initially, Mr Withers labelled the SSM ILUA as overly costed and used criticism of it to provide for low offers.  In De Roma, Western Yalanji sought to refute this by setting out the SSM ILUA should be viewed as a benchmark for negotiations.

[148]Mr Withers seized upon this in the post-De Roma phase of the negotiation and has instead used figures in the SSM ILUA to justify calculations.  In doing so, Mr Withers has sought, in a sense, to delegitimise the argument of Western Yalanji in support of their compensation position.  After all, it was Western Yalanji who labelled the SSM ILUA a benchmark, therefore figures higher than it provides for must be unreasonable?

[149]Ironically and despite his criticisms of it, it is only Mr Withers who has been using the SSM ILUA as a negotiation device during these entire negotiations.  Western Yalanji simply said the ancillary agreement was in a form similar to the SSM ILUA and that it should serve as a benchmark.  I interpret this to mean that from the point of view of Western Yalanji, nothing should go below the standard of the SSM ILUA, not that the parties should be locked into it.

[150]The ancillary agreement is an entirely new agreement, one which is different from and separate to the SSM ILUA.  I have formed the view that in both phases of the negotiation, despite its irrelevance, Mr Withers has sought to use the SSM ILUA as a mechanism to generate distraction and in effect, stymie negotiations and prevent agreement making.  Going forward, it would be my view that the SSM ILUA is a term and mechanism that is best expunged from these negotiations.  It is a mechanism of the past that is no longer relevant to the parties and is unacceptable to use as a red herring going forward.

[151]I would also make some observations on the main reasons provided to Western Yalanji by Mr Withers on why the compensation sought by it was not acceptable to the grantee party. This was based to a large extent on the notions explored previously and the idea that Western Yalanji had not shown or proven how their native title rights and interests would be impacted. This looks to stem from the key underlying views of Mr Withers in regard to s 31(2) which appears to be that, as a grantee party is not required to negotiate on things that do not effect native title (see paragraphs [36] and [37]), then if an effect on the exercise of native title rights and interests cannot be substantiated, no negotiation on these points is necessary or mandatory.

[152]This would not be the correct approach to s 31(2). Section 31(2) is focussed on the effect of the future act on the registered native title rights. The registered native title rights were determined by the Federal Court in the Brady v Queensland determination at [6] to be exclusive possession, with the future act in this instance being the grant of the entire area of the proposed leases. This is quite different to and separate from the effect Mr Withers perceives on the exercise of these rights and interests or the usage of the land. These rights exist over the entire area of the proposed leases and it’s not for other parties to reimagine that which has been determined to exist by the Court.

[153]Of course this perspective, what the future act is and what is actually being compensated for was addressed in De Roma at [125]-[129]. More recently, this approach was addressed in Withers v Ewamian at [71]-[78], particularly at [77].

[154]In examining this, it is clear Mr Withers had not changed his views post-De Roma and neither did he change his approach.  In my view, the amount being sought by Western Yalanji was reasonable, noting also that this figure was reduced from the original.  In an effort to justify his compensation offer and reject what Western Yalanji sought though, Mr Withers continued to assert Western Yalanji people were not exercising their native title, continued to allege Western Yalanji were engaging in misleading or deceptive conduct and in general, berate Western Yalanji for their views and positions.  At the same time Mr Withers stated his views were fully explained, despite the fact they were based on notions shown to be erroneous in De Roma and elsewhere. 

[155]Similar issues were experienced in regard to cultural heritage survey matters. Mr Withers questions why this topic would be mandatory to negotiate as indicated by Western Yalanji since the early stages of the negotiation process. Perhaps this view again arises from Mr Withers’ restrictive view of s 31(2). Unfortunately, there is not a list of native title rights and interests for those areas that are exclusive possession to provide guidance, these are formed by the content of the law and custom of the group. There is, however, a list of the registered native title rights and interests for those areas that are determined as non-exclusive native title.

[156]In the case of the non-exclusive areas of the Western Yalanji determination, Brady v Queensland at 7(h) includes that the Western Yalanji have the ‘right to maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm’, or in other words, to protect cultural heritage. This should provide a clue that this will form part of the content of the exclusive native title rights and interests given it is derived from the same body of law and custom from the group.

[157]This would partly explain the emphasis of Western Yalanji on the topic, the view that the grant of the proposed licences pay impact upon heritage and the strong desire to negotiate an appropriate solution.  Additionally, it would seem to be in the interest of the grantee party to resolve this issue to meet the duty of care as required by the Aboriginal Cultural Heritage Act, as Western Yalanji contend and as Member Cooley indicates in Withers v Ewamian at [81].

[158]Failure to come to terms on this issue is not necessarily an indication of a lack of good faith.  What is determinative is the manner in which the parties approached the issue, the reasonableness of conduct and the state of mind of the parties in the course of this process.  Here, the approach of Mr Withers was similar to that which he had previously taken.  Having failed to immediately reach agreement, Mr Withers makes a number of allegations of misleading and other underhanded conduct on the part of Western Yalanji, sets out that Western Yalanji have not provided evidence to justify costs and continues to assert the grantee party has provided fully explained reasons for the offers put forward.

[159]In fact, Western Yalanji had provided reasoning for the costs it was proposing and had removed a number of significant costs.  This is perhaps not the most important issue here though. This would be that Mr Withers, through continued allegations of misleading conduct and providing misleading information as well as entirely dismissing the views of Western Yalanji on what was reasonable, acted in a manner that prevented agreement.

[160]Similar issues regarding the approach of Mr Withers were experienced in the key area of the consultation and consent process.  The view of Mr Withers did not change in any substantial way pre- and post-De Roma, however the justifications for not supporting the consultation and consent process were modified to some extent. 

[161]Initially, Mr Withers was resolute in the view that support for this process was unnecessary as Western Yalanji were likely to have support from other, mainly governmental, sources.  This was addressed in De Roma at [155]-[165].

[162]As in the negotiations leading up to De Roma, Western Yalanji continued to advise Mr Withers of their obligations under the PBC Regulations and of their ability to cover costs provided by s 60AB of the Native Title Act. Mr Withers quibbled over the meaning of s 60AB, ascribing it an effect that is not provided on a plain reading and otherwise not recognising the obligations of Western Yalanji.

[163]While agreement on a key term had not been reached, Mr Withers had agreed to drafting which included the notion of pro rata support for the consultation and consent process.  When Western Yalanji raised that it was likely the grantee party would only cover a portion of the costs suggested due to such a meeting also processing other agreements, Mr Withers makes the arguments outlined at paragraphs [112]-[115], including again that Western Yalanji are publicly funded for such purposes.

[164]I would note that while prescribed bodies corporates like Western Yalanji do have obligations to manage the native title of the group, including making and entering into agreements and engaging constructively with grantee parties, their raison d'être is not submission to grantee party wants. As such, prescribed bodies corporate are unlikely to be able to and should not be expected to absorb costs for the convenience of commercial operations, irrespective of their scale. This, along with similar views on public funds, is the very reason the Commonwealth Parliament included s 60AB into the Native Title Act.  Indeed, it is routine for grantee parties to support organisations like Western Yalanji to meet their native title decision making obligations, recognising it is in their own interest for this to occur.

[165]At all times though, Mr Withers sought to question the need for such a process, despite its underpinnings in legislation and regulation being explained. Mr Withers also questioned the authority of parts of the legislation (particularly s 60AB), again raised the idea that Western Yalanji were funded for this purpose despite being advised it was not, seemingly ignored that this issue was examined in De Roma, and then rejected a position intended to reduce costs put forward by Western Yalanji, in pro rata support, despite agreeing to this very concept previously. 

[166]It would not be a stretch to reach a conclusion that this approach, particularly the last, is an active effort to avoid agreement making in favour of seeking a determination that the future act may proceed from the Tribunal and thereby avoiding any costs.  I cannot conclusively reach such a view, however would note that the approach of Mr Withers on this issue has had the same effect regarding the ability of the parties to reach agreement.

Concluding Remarks

[167]Having examined the evidence before me, I am satisfied the grantee party has not negotiated in good faith.  While there was some small change of position post-De Roma, I have formed the view this was in the service of supporting the same approach as that which was previously applied.

[168]Mr Withers continued to assert to Western Yalanji that its people were not exercising their native title rights and interests, that the impact on native title was minimal or could not be proven and continued to labour under the misapprehension that only the footprint of the operation was compensable rather than the grant of the lease itself. 

[169]Given these issues were examined in De Roma and contributed to a determination of a lack of good faith in that instance, it is not unreasonable to expect the grantee party’s approach would be modified.  Mr Withers failed to take that opportunity. 

[170]Although some of the justifications changed, such as the co-option of the similar compensable interest test and the SSM ILUA, I have formed the view that this was effectively in pursuit of the same ends and informed by the same principles as prior to De Roma.  Using these mechanisms, Mr Withers presented an argument on what I can only describe as deliberately misapprehended terms (given the examination of these errors in De Roma) regarding compensation and attempted to lock down the parameters of any discussion.  In doing so, and then sticking so determinedly to his position, I have formed the view that Mr Withers refused to engage in meaningful negotiation that sought the agreement of the native title party. 

[171]Similar can be said in the areas of heritage and support for the consultation and consent process, where I have previously expressed the view that some of the positions taken by Mr Withers appeared to be for the purpose of avoiding agreement.

[172]It is also clear that Mr Withers’ general approach did not change from that which was experienced in the De Roma phase of these negotiations.  Mr Withers made repeated allegations of misleading conduct towards the native title party and continued to disparage Western Yalanji and the exercise of their native title during the course of the negotiations.  This cannot be said to be an approach that would support the building of good will and the generation of agreements.

[173]In essence and like the conclusion reached in Withers v Ewamian at [93], while Mr Withers stated he was seeking agreement, his words and deeds indicated otherwise. I agree with the contentions of Western Yalanji that the grantee party held a rigid position and engaged in an approach which did not change in any measurable way in the post-De Roma stage of this negotiation process.  In stating this, it would be apparent that I also agree with the contentions of Western Yalanji that the grantee party engaged in egregious conduct that harmed the negotiation process and failed to do what was reasonable in the circumstances.

[174]This finding is particularly vexing given the clear guidance provided by De Roma.  Additionally, this is the third future act determination application made by Mr Withers in the past two years, each of which have failed at the good faith stage for similar reasons.  This is a very unusual situation.

[175]It is not difficult to meet the threshold required of good faith, even where the parties fail to reach agreement, and the Tribunal is not given to making findings such as these lightly.  Generally, where a grantee party has been found not to have negotiated in good faith, the approach will be modified and agreement is for the most part, reached.  In other words, while it is not entirely unprecedented, it is very unusual to see a grantee party or their representative fail to reach good faith requirements a second time in what is, in effect the same course of negotiations, let alone fail in three separate applications over a two year time span.  In my view, it shows a deliberate and continuing pattern of behaviour in the face of clear guidance from the Tribunal’s decisions.

[176]In this time, the Tribunal has allocated substantial resources and time to the applications made by Mr Withers, representing a significant use of public funds and resources.  Additionally, the native title parties have been required to undertake very significant expenditure to respond to the inquiries that commence once a future act determination application is made.  Given my findings here, the grantee party is perhaps fortunate the Tribunal is a non-costs jurisdiction.

[177]The parties now have a further opportunity to negotiate.  The grantee party would be well served to take note of the findings in De Roma and this determination.  Agreement is quite possible and as observed by Member Cooley in Withers v Ewamian at [116], this matter may well benefit from mediation, should Mr Withers radically alter his way of thinking and approach.

[178]Mediation requires parties to come to the negotiation table with a clear intention to negotiate in good faith with the aim of reaching agreement.  Unfortunately, if Mr Withers continues with his current approach and pattern of behaviour as demonstrated over the last three Tribunal good faith determinations involving him, it is difficult to see how further attempts at negotiation could be successful and a continuing waste of the resources of all involved avoided.  Whether this is the case or not, one thing is very clear, a very different approach is required by the grantee party in order to meet the requirements of good faith, requirements that are not particularly onerous or difficult to reach.

Determination

[179]I am satisfied that Edmund James Fitzgerald has not negotiated in good faith as required by s 31(1)(b) of the Native Title Act. Accordingly, I do not have the power to proceed to make a determination on the future act determination application brought in respect to ML100249 and ML100250. I dismiss the application of Edmund James Fitzgerald under s 148(a) of the Native Title Act.

Mr Glen Kelly
Member
30 November 2023

Annexure A1

Western Yalanji documents as annexed to the Cecchi Affidavit

Document number	Description	Date
WYAC Doc 1	Government Party bundle of documents including the section 29 Notice.	7 July 2020
WYAC Doc 2	Maps of MLs 100249 and 100250
WYAC Doc 3	QI2013/080 Western Yalanji SSM ILUA	23 April 2014
WYAC Doc 4	Western Yalanji letter to grantee party including Details of Proposed operations form and a draft ancillary agreement.	20 July 2020
WYAC Doc 5	Western Yalanji letter of submission to the Government Party	20 July 2020
WYAC Doc 6	NQLC email letter to Western Yalanji including a copy of the section 29 Notice	20 July 2020
WYAC Doc 7	Grantee party email to Western Yalanji	3 August 2020
WYAC Doc 8	Western Yalanji email to grantee party	4 August 2020
WYAC Doc 9	Grantee party email to Western Yalanji including the Details of Proposed operations form and bundle of other requested documents	10 August 2020
WYAC Doc 10	Western Yalanji email to GP	28 August 2020
WYAC Doc 11	Grantee party email to Western Yalanji	4 September 2020
WYAC Doc 12	Western Yalanji email to GP	7 September 2020
WYAC Doc 13	Grantee party email to Western Yalanji including attached letter	17 September 2020
WYAC Doc 14	Western Yalanji email to GP	18 September 2020
WYAC Doc 15	Grantee party email to Western Yalanji including attached letter	2 October 2020
WYAC Doc 16	Western Yalanji email to GP	8 October 2020
WYAC Doc 17	Grantee party email to Western Yalanji including interlineated email	28 October 2020
WYAC Doc 18	Government Party email to Western Yalanji	26 November 2020
WYAC Doc 19	Western Yalanji email to Government Party	1 December 2020
WYAC Doc 20	Western Yalanji email to grantee party including letter	6 December 2020
WYAC Doc 21	Grantee party email and letter to Western Yalanji	17 December 2020
WYAC Doc 22	Grantee party email to Western Yalanji	15 March 2021
WYAC Doc 23	Western Yalanji email to GP	17 March 2021
WYAC Doc 24	Grantee party email to Western Yalanji	7 May 2021
WYAC Doc 25	Government Party email to Western Yalanji	14 July 2021
WYAC Doc 26	Grantee party email to Western Yalanji	16 July 2021
WYAC Doc 27	Grantee party email to Western Yalanji	19 July 2021
WYAC Doc 28	Western Yalanji email to grantee party including letter and draft ancillary agreements	22 July 2021
WYAC Doc 29	Grantee party email to Western Yalanji including letter	4 August 2021
WYAC Doc 30	Western Yalanji email to grantee party	5 August 2021
WYAC Doc 31	grantee party email to Western Yalanji including letter	6 September 2021
WYAC Doc 32	Western Yalanji email to grantee party	7 September 2021
WYAC Doc 33	Grantee party email to Western Yalanji	8 September 2021
WYAC Doc 34	Grantee party email to Western Yalanji including draft ancillary agreements	10 October 2021
WYAC Doc 35	Grantee party email to Western Yalanji	11 November 2021
WYAC Doc 36	Grantee party email to Western Yalanji including letter	1 December 2021
WYAC Doc 37	Western Yalanji email to grantee party including letter and draft ancillary agreements	14 December 2021
WYAC Doc 38	Grantee party email to Western Yalanji	16 December 2021
WYAC Doc 39	Western Yalanji email to grantee party including a letter	23 December 2021
WYAC Doc 40	Grantee party email to Western Yalanji including letter and ancillary agreement	18 January 2022
WYAC Doc 41	Government Party email to Western Yalanji	25 May 2022
WYAC Doc 42	Western Yalanji email to Government Party	27 May 2022
WYAC Doc 43	Grantee party email to Government Party	30 May 2022
WYAC Doc 44	Grantee party email to Western Yalanji including letter	29 June 2022
WYAC Doc 45	Western Yalanji email to GP	30 June 2022
WYAC Doc 46	Grantee party email to Western Yalanji including letter and draft ancillary agreements	11 July 2022
WYAC Doc 47	Western Yalanji email to grantee party including a letter and draft ancillary agreements	29 August 2022
WYAC Doc 48	Grantee party email to Western Yalanji including a letter	20 October 2022
WYAC Doc 49	Western Yalanji email to grantee party	20 October 2022
WYAC Doc 50	Grantee party email to Western Yalanji including letter	28 October 2022
WYAC Doc 51	Western Yalanji email to grantee party	31 October 2022
WYAC Doc 52	Government Party email to Western Yalanji	29 November 2022
WYAC Doc 53	Western Yalanji email to Government Party	29 November 2022
WYAC Doc 54	Grantee party email to Government Party	30 November 2022
WYAC Doc 55	Western Yalanji email to Government Party	16 December 2022
WYAC Doc 56	Grantee party email to Western Yalanji including interlineated email / letter	18 December 2022
WYAC Doc 57	Western Yalanji email to grantee party	19 December 2022
WYAC Doc 58	Grantee party email to Western Yalanji and Western Yalanji reply	19 December 2022
WYAC Doc 59	Grantee party email to Western Yalanji	23 December 2022
WYAC Doc 60	Western Yalanji email to grantee party	3 January 2023
WYAC Doc 61	Grantee party email to Western Yalanji	16 January 2023
WYAC Doc 62	Western Yalanji email to grantee party including letter	7 February 2023
WYAC Doc 63	Grantee party email to Western Yalanji including letter	3 March 2023
WYAC Doc 64	Western Yalanji email to grantee party	23 March 2023
WYAC Doc 65	Grantee party email to Western Yalanji	11 April 2023
WYAC Doc 66	Western Yalanji email to grantee party including letter	14 April 2023
WYAC Doc 67	Grantee party email to Western Yalanji	17 April 2023
WYAC Doc 68	Western Yalanji email to grantee party including letter	21 April 2023

Annexure A2

Chronology following the decision in De Roma

Date	Description	Source Document
31 May 2022	Tribunal hands down decision in De Roma.
29 June 2022	The grantee party, via their representative Mr Withers, writes to Western Yalanji seeking to ‘start new negotiations for Edmund Fitzgerald’s and Kevin De Romas’ (3) ML’s’. The correspondence identifies the expired SSM ILUA, with CPI increases as ‘the starting point for negotiations’. Mr Withers noted that the most recent offer had increased from nil to $150 per annum ‘with the thoughts of continuing further progressions to be the same to amount as what the GP has for an agreement with the other Aboriginal landowners for $350 per Annum without CPI, and the Compensation cost later, to be as per the ILUA states with its CPI increases (Should be about $650 for year 22-23)’. On the issue of costs for any cultural heritage inspection Mr Withers noted that a number of issues were apparently agreed between parties $2,340 for ML 100249 and $1,560 for ML 100250. Mr Withers also advised the proposed work area for each of the licences would be reduced by around a third, 29 hectares or 33% for ML100249 and 11 hectares or 31% for ML100250.	D45
11 July 2022	Mr Withers provides a response to NQLC including a marked-up copy of the expired SSM ILUA. This draft raised the windfall payment threshold to  2.5% of gross proceeds over $880,335 for a single tenement or 2.5% of gross proceeds over $1,760,670 for two or more tenements in a Single Integrated Project; and set compensation at $350 per annum, with no CPI increases, until an Aboriginal Cultural Heritage Survey was completed after which it would be $586.89 per annum. There were significant changes to the dispute resolution procedures away from mediation and towards litigation and, amongst other amendments, the draft provided a cultural heritage inspection fee of $2,340 for ML100249 and $1,560 for ML100250. Finally, Mr Withers’ amended agreement provided that the grantee may, rather than must, contribute consultation and consent meetings.	D46
29 August 2023	NQLC responds to the grantee party, providing a revised draft ancillary agreement which had been settled by the Western Yalanji Board. The accompanying letter noted there had been some amendments to the terms of the standard agreement and highlighted a number of issues including that: •            the grantee party ‘must contribute to the costs of consultation and consent meeting for the Western Yalanji People as required in accordance with the PBC Regulations and that contribution is capped at $2,500 pro rata (GST exclusive)’; •            compensation was set at $1500 per annum; •            the windfall payment threshold remained at 2.5% of gross proceeds over $750,000 for a single tenement however was raised to 2.5% of gross proceeds of $1.5 million for two or more mining leases in a Single Integrated Project; and •            the calculation of Aboriginal Cultural Heritage Inspection fees was amended to $750.00 per person per day along with a $50 per person per day stipend for safety equipment, subject to annual CPI increase. Food, accommodation and accommodation were pegged to ATO rates. Finally, the administration fee was 20% of the total cost.	D47
20 October 2022	Mr Withers responds to NQLC advising the grantee party ‘wishes to retract all his negotiations prior to the 29/6/2022’ and noting clause 28 in the draft ancillary agreement provides it would constitute the whole of the agreement between the parties. Mr Withers notes that the SSM ILUA had previously been accepted by Western Yalanji and suggests that few grantee parties have accepted the draft agreement provided on 29 August 2023. He requests that NQLC provide feedback on the costs issues as proposed by him, and reasons for their counteroffer. Mr Withers also makes a number of comments concerning Western Yalanji’s submissions in De Roma and suggests the inclusion of an ‘Evidential Standards’ clause for cultural heritage in the draft ancillary agreement.	D48
20 October 2022	NQLC responds to Mr Withers providing that the language and tone used in his letter ‘is not appreciated and is not in good faith’. NQLC also notes the State would not be party to any ancillary agreement and that the correspondence referenced other negotiations concerning confidential information. NQLC requests the State disregard the correspondence, invite Mr Withers to provide any further comments in redline on the draft ancillary agreement and advise that they would otherwise not respond to the letter until such time as Mr Withers engaged ‘constructively (and confidentiality) on that draft’.	D49
28 October 2022	Mr Withers writes to NQLC to say their comments concerning language and tone are ‘the most frivolous and vexatious comment regarding Good Faith issues I have seen in all negotiations so far, and I would nearly go as far as saying that anyone that would agree with you, has a biased attitude’. Mr Withers notes that the State is a party to the negotiations about the grant of the tenement itself, would be party to any future act determination application and that he wants the State privy to all negotiations ‘so that they do not get any of my past negotiations misquoted “IF” such is referred to a FADA by the GP, and a shamble of Chains of repeated emails and attached letters were tendered to cause confusion, as typically seen at the Tribunals NIGF determination “Kevin De Roma Vs Western Yalanji” for any of the Public to view this NIGF outcome. “(ie. Not Confidential.)”’. Mr Withers concluded by asking Western Yalanji to return comments ‘and engage constructively’.	D50
31 October 2022	NQLC writes to Mr Withers noting the State would not be subject to any ancillary agreement and that it did not consider the grantee party had yet provided a response to the draft of 29 August 2023.	D51
18 December 2022	Mr Withers writes to NQLC attaching marked up pdf versions of a draft ancillary agreement. In the cover letter Mr Withers provided that the grantee party had ‘agreed to most of the changes that WYAC [Western Yalanji] has asked for’ and refers to the ‘past numerous fully explained reasons in the past attached letters, especially for Compensation Benefit Costs and the ACHI Survey costs’. While the grantee party accepted the updates made to Western Yalanji’s standard heritage agreement, as provided on 29 August 2022, there was no change in the grantee party’s position on several key positions. In particular the grantee party’s positions on compensation, the windfall payment threshold, the dispute resolution procedure, contribution to consultation and consent meetings and cultural heritage inspection fees remained substantively unchanged.	D56
7 February 2023	NQLC responds to Mr Withers noting that while some matters had been agreed there remained several outstanding issues. In particular, NQLC notes the drafting concerning compensation benefits was not agreed and the Western Yalanji People and could not bring offers ‘which fall well below their expectation for compensation’. NQLC also advised that the process for resolving disputes between the parties and the issue of costs, with Western Yalanji requiring a positive contribution from the grantee party towards the costs of a consultation and consent meeting, were not agreed. Finally they confirmed the cultural heritage costs issue was not agreed as the grantee party’s proposal would ‘cause financial loss to’ Western Yalanji.	D62
3 March 2023	Mr Withers writes to NQLC advising that the grantee party agrees compensation needs to be paid and has offered far more than ‘what any Land Court would judge upon for the ordinary Landholder for land deprivation for the restricted 10 Hectares of areas within the ML’s’. Mr Withers states the grantee party will not change ’Is mind but maintains the offer of $350 per annum, with no CPI increases, until an Aboriginal Cultural Heritage Survey is completed. Following this  the amount would increase to $586.89 per annum, with the first years prorated. Alternatively, Mr Withers offers $375 with annual CPI increases. On dispute resolution Mr Wither maintains his position that if parties have been unable to resolve the dispute themselves there will be little utility to mediation. In relation to consultation and consent meetings Mr Withers advises the grantee party ‘does not wish to agree to waste his hard earned funds or time on anything other than if he has been given, and agrees to a firm quote from the NTP regarding this cost, and definitely prior to the event happening, and a firm date of when the meeting is to happen’. Mr Withers suggests the use of ‘may’ in s 60AB of the NTA ‘would be meant for time spent on large scale mining’. Mr Withers describes Western Yalanji’s comments regarding cultural heritage costs as ‘totally misleading’ and provides that the grantee party has ‘offered far more costs for the ACHI surveys to be done for the NTP not to be at a financial loss, but also they are making a profit and offers  a cultural heritage inspection fee of $2,340 for ML100249 and $1,560 for ML100250 and an administrative fee of 15% of the inspection fee.	D63
14 April 2023	NQLC substantively responds to Mr Withers correspondence of 3 March 2023. In summary NQLC advised the drafting concerning provision of the compensation benefits and the changes to the windfall agreement were still not agreed. NQLC questions whether ‘a first payment being pro rata of $350 and then following the ACHI a payment of $586.89 pa noting that no CPI increases apply’ or alternatively ‘$375 pa with CPI increase to apply for each mining lease (ML) from time of grant’ could be seen as a ‘progressive offer’. NQLC noted that the changes to the dispute resolution were not agreed. On the issue of consultation and consent meetings NQLC advised Western Yalanji was legally required to hold a meeting if the proposed agreement fell outside their standing instructions and they could not do so unless they knew their costs are covered. NQLC note that in practice Western Yalanji attempts to have multiple matters considered at a meeting in order to reduce costs on a pro rata basis. Finally the confirmed the cultural heritage costs issue remained not agreed as the grantee party’s proposal do not meet the costs of conducting surveys. Western Yalanji advised that they were willing to revert to their ‘older cultural heritage rate’ and provided a quote of $9595.38 excluding GST and admin fees for ML100249 and $3448.82 excluding GST and admin fees for ML100250.	D66
17 April 2023	Mr Withers indicates that the matter would proceed to a FADA application.	D67
12 May 2023	NQLC notified of the present application.