William Robert Richmond v Kalman Michael Murphy & Ors on behalf of the Waturta Native Title Claim Group and Another - [2025] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

William Robert Richmond v Kalman Michael Murphy & Ors on behalf of the Waturta Native Title Claim Group and Another [2025] NNTTA 4 (12 March 2025)

Application No:

WF2024/0009

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

- and -

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

William Robert Richmond

(grantee party)

- and -

Kalman Michael Murphy & Ors on behalf of the Waturta Native Title Claim Group (WC2018/012)

(native title party)

- and -

State of Western Australia

(Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	12 March 2025

Catchwords:	Native title – future act – s 35 application for determination – exploration licence application – power to make determination – whether grantee party has negotiated in good faith – where grantee party engaged single member of the native title party to conduct a heritage survey separate to negotiations with the native title party – grantee party has not negotiated in good faith – future act determination application dismissed
Legislation:	Aboriginal Heritage Act 1972 (WA) s 18 Mining Act 1978 (WA) Native Title Act 1993(Cth) ss 31, 32, 36, 38, 62C, 66B, 148, 151
Cases:	FMG Pilbara Pty Ltd v Cox and Others [2009] FCAFC 49; (2009) 175 FCR 141 (‘Cox’) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (‘Gomeroi’) Kalman Murphy & Others on behalf of Waturta v William Robert Richmond and Another [2021] NNTTA 55 (‘Waturta v Richmond’)
Representative of the native title party:	Luke Nixon, Cross Country Native Title Services Pty Ltd

Representative of the grantee party:

Tim Kavenagh, Kavenagh Legal

Representatives of the Government party:

Domhnall McCloskey, State Solicitor’s Office; Jennifer Myburgh, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DECISION

William Robert Richmond has applied for the grant of an exploration licence (E 38/3522) under the Mining Act 1978 (WA). The licence is located northerly of Laverton in Western Australia and partly overlaps the Waturta native title determination application (WAD297/2018) (Waturta Claim).
On 7 October 2021, the National Native Title Tribunal determined that the grant of the licence was not an act attracting the expedited procedure under the Native Title Act 1993 (Cth) on the basis that it was likely to interfere with areas or sites of particular significance to Waturta People, being the tjukurrpa (Dreaming path) associated with Tjinkurna (the Dragonfly man) and a related rockhole/rock feature: Waturta v Richmond at [32].
Consequently, the negotiation parties for the licence, being Mr Richmond, the State and the registered native title claimant for the Waturta Claim (Waturta or Waturta Applicant) were required to negotiate in good faith with a view to obtaining Waturta’s agreement to the grant of the licence: ss 32(5) and 31(1)(b) Native Title Act. The Waturta Applicant is comprised of six persons, being Kalman Murphy, Kado Muir, Jennifer Narrier, Anthony Shaw, Lynette Shaw and Vanessa Thomas.
The negotiation parties did not reach agreement and, in September 2024, Mr Richmond applied to the Tribunal for a determination that the licence may be granted. That determination falls to me, but I must not make a determination on the application if Waturta satisfies me that the State or Mr Richmond did not negotiate in good faith as mentioned in s 31(1)(b): s 36(2) Native Title Act. Waturta contends that Mr Richmond did not negotiate in good faith, but it does not make any such assertion in relation to the State.
I am satisfied this matter can be adequately determined on the papers: s 151(2) Native Title Act. For the reasons explained below, I find that Mr Richmond did not negotiate in good faith and therefore I do not have power to determine whether the licence may be granted. Accordingly, I dismiss Mr Richmond’s application: s 148(a) Native Title Act.

Preliminary question – has Mr Richmond negotiated in good faith?

The scope of the obligation to negotiate in good faith under s 31(1)(b) was recently considered by the Full Court of the Federal Court of Australia in Gomeroi. The good faith requirement is directed towards the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is concerned with a party’s state of mind as manifested by its conduct: Cox at [20].
As discussed in Gomeroi at [406], the obligation to negotiate in good faith involves both objective and subjective standards, but the reference to objective standards is the objective standard of honesty against which a party’s conduct is to be assessed. The good faith obligation is principally concerned with a negotiating party’s intention, namely whether the party has negotiated with the aim of reaching agreement.

What happened during the negotiations?

The negotiations between Mr Richmond and Waturta were primarily conducted through their legal representatives, namely Mr Tim Kavenagh of Kavenagh Legal for Mr Richmond and Mr Andre Maynard (and on occasion Mr Luke Nixon) of Cross Country Native Title Services Pty Ltd for Waturta. According to the Extract from the Register of Native Title Claims (RNTC) for the Waturta Claim, the address of Mr Nixon at Cross Country is the address for service of the Waturta Applicant.
In describing the negotiations, any references to the parties collectively excludes the State, which did not take an active role.
Following the decision in Waturta v Richmond, the parties exchanged contact details and, on 21 October 2021, by email between the legal representatives, Waturta invited Mr Richmond to attend a meeting in Leonora or Kalgoorlie to explain his plans for the licence and progress negotiations for an agreement. Waturta also inquired whether Mr Richmond was willing to arrange the meeting, including covering Waturta’s reasonable costs of attendance.
On 16 November 2021 and again on 14 December 2021, replying to two different emails, Mr Kavenagh on behalf of Mr Richmond proposed the “main terms” of an agreement, being that:
(a)Waturta consent to the grant of the licence;
(b)Mr Richmond will pay Waturta $10,000 to conduct a survey (which I understand to be a heritage survey) of the licence area, when granted;
(c)Mr Richmond will, at his cost, drill a water bore to a maximum depth of 50 metres at a site chosen by Waturta, but, in any event, as close as possible to the nearest public road; and
(d)the water from the bore would be for use by Waturta, Mr Richmond and his representatives.
Each of these emails enquired whether Waturta would consider such an agreement. There was no direct response to Waturta’s enquiry regarding a meeting between the parties.
At the end of January 2022, Waturta advised it was considering the offer and would respond shortly.
From May 2022 to January 2023, there were a few exchanges between the parties’ legal representatives regarding the status of Waturta’s consideration of the proposal. Other than a reference to COVID delays affecting Waturta’s response, no reason is given for the delay.
Mr Richmond deposes that, in November 2022, he negotiated with one member of the Waturta Applicant, Mr Kalman Murphy, to undertake a heritage survey but this agreement was terminated by Mr Murphy in December 2022. No reasons are given for the termination of that agreement.
By late January 2023, Mr Maynard had received instructions and advised Mr Kavenagh that Waturta was willing to consider an agreement on the terms proposed by Mr Richmond, subject to its standard heritage agreement clauses being included. A draft agreement was provided by Waturta in late February 2023.
Mr Richmond says that he and Mr Murphy entered into another agreement for the conduct of heritage surveys for multiple tenements on 15 March 2023. The agreements with Mr Murphy are not in evidence but I expect he was paid for his work. There is nothing in the material to suggest that Waturta was informed of Mr Richmond’s various agreements with Mr Murphy or the proposal to conduct a heritage survey separate to the heritage survey being negotiated on his behalf by Mr Kavenagh.
Mr Maynard followed up on the draft heritage agreement in June and July 2023 and on 24 July 2023 Mr Kavenagh advised he was seeking instructions. There was a further follow up by Mr Maynard in August 2023.
Mr Kavenagh responded on 26 October 2023 with an amended agreement and Mr Maynard acknowledged receipt on 29 October 2023, advising he would take instructions and respond in due course.
The versions of the agreement in evidence do not appear to contain any marked up amendments but they cover a range of matters including consent to the grant of the licence, access for Waturta People to the licence area, consultation about environmental matters, annual meetings between the parties, the provision of cross-cultural training for Mr Richmond’s staff and contractors, the proposed water bore and dispute resolution. The heritage protection provisions included survey procedures, processes for any s 18 consent sought by Mr Richmond under the Aboriginal Heritage Act 1972 (WA) and protection of Waturta’s intellectual property. It appears that the parties were proposing different heritage survey procedures and cost structures, but those differences are not discussed or explained in their correspondence.
In early January 2024, Mr Kavenagh noted no comments had been received and asked they be provided by 20 January 2024.
On 13 March 2024, Mr Kavenagh again followed up a response and advised that Mr Richmond wished to continue negotiations on the basis that the agreement included another tenement, being E 38/3822, which is contiguous to the licence. I note that according to the Tribunal’s online mapping tool, Native Title Vision, E 38/3822 is also pending grant and abuts the licence to the north and east. Mr Maynard replied that same day to say he would obtain instructions on combining negotiations for the two tenements and provide an updated draft agreement soon.
Mr Kavenagh followed up on 9 April 2024. An amended draft agreement was provided by Mr Maynard on 25 May 2024 and did include E 38/3822 as requested by Mr Richmond. Again, there is no evident mark up on the version in evidence and the parties’ correspondence does not illuminate any key points of difference.
However, in early May 2024, Mr Murphy had conducted a survey of the licence area and produced a report dated 29 May 2024 to the effect that there are no heritage sites in the licence area. The report, a redacted copy of which has been provided in evidence, does not outline in any detail how the survey was undertaken or the exact areas inspected. The report refers to three surveys, two of which were conducted prior to the survey of the licence, one in June 2023 and the second in April 2024. Although heavily redacted, the report appears to relate to the survey of a considerable number of tenements in the Waturta Claim area.
On 26 June 2024, Mr Kavenagh advised Mr Maynard by email of Mr Murphy’s report which outlined that there are no sites on the licence (or E 38/3822) and advised that there is, therefore, “no point” entering into a heritage agreement.
On 5 July 2024, Mr Nixon sent an email to Mr Kavenagh explaining that Waturta comprises a number of persons acting jointly and, while Mr Murphy is one of those persons, he does not have sole authority to make decisions for Waturta.[1] Mr Nixon further explained that Waturta’s instructions are to negotiate a heritage agreement to facilitate the grant of the licence.
[1] Mr Murphy deposes that he is authorised by the claim group to speak for the members of the Waturta Claim, however, there is no evidence that he has any authority other than in his capacity as one member of the Waturta Applicant. Mr Murphy also deposes that at a meeting in November 2024 it was resolved that Mr Kado Muir (who has given evidence for Waturta in this proceeding and in Waturta v Richmond) did not have authority to speak for Waturta. However, no detail or further explanation is given and Mr Muir remains a member of the Waturta Applicant. If there were to be a change in the composition of the Waturta Applicant, the appropriate course is by way of an application under s 66B of the Native Title Act. In any event, November 2024 is well after the date this application was made and any such meeting is not relevant to the negotiations in issue.
On 7 July 2024, Mr Maynard wrote to Mr Kavenagh to say that he hoped Mr Nixon’s email was sufficiently clear in terms of the position of the Waturta Applicant and looked forward to receiving Mr Richmond’s comments on the further updated agreement sent in May 2024.
On 8 August 2024, Mr Kavenagh replied to reiterate Mr Richmond’s position that a heritage agreement is not required because the “lead applicant” (Mr Murphy) had inspected the licence area and advised in writing that there are no sites on the licence. Mr Kavenagh said that, as the parties have reached an impasse that is not likely to be resolved, he had been instructed to prepare this application which was lodged in early September 2024.

Did Mr Richmond negotiate in good faith?

Her Honour Chief Justice Mortimer observed in Gomeroi at [96] that the “Tribunal is after all doing no more at the good faith constraint stage than assessing the course of a negotiation, and measuring it objectively against a standard of honesty, open mindedness and willingness to listen”. The Tribunal’s role is not to form its own assessment of whether a particular offer was “reasonable” or not, although making a patently unreasonable offer might be one indicia of a lack of fair dealing or honesty, or it may not: see discussion in Gomeroi at [95]–[97].
Waturta asserts that Mr Richmond denies the impact the grant of the licence will have on its native title and failed to engage with Waturta’s position in that regard. It says there has been no discussion aimed at reaching agreement, merely a refusal to depart from its original offer (as set out at [11] above) and a continual assertion that there will be no impact on native title. Waturta says that Mr Richmond did not engage in negotiation and presented an overall unwillingness to compromise, including a failure to make counter proposals.
Mr Richmond says, and I accept, that his conduct must be considered in light of Waturta’s conduct. Mr Richmond refers particularly to delays on the part of Waturta, pointing to the fact that Waturta did not provide any substantive response to his initial proposal for a period of 14 months and that there was a delay of about 7 months between October 2023 and May 2024.
Mr Richmond’s summary of his position is that he “negotiated with the Native Title Party (as a group) but was delayed for no apparent reason and so he obtained a heritage survey from Mr Murphy”. Mr Richmond says the survey revealed there were no Aboriginal heritage sites in the licence area and submits that no action or inaction by him could be said to have occurred which was not in good faith.
However, while there were delays on the part of Waturta, there were also delays by Mr Richmond. The parties’ materials are replete with examples of one or the other following up on progress. What is striking though, is that at no stage did Mr Kavenagh on behalf of Mr Richmond raise any concern about delay or foreshadow that some alternate action might be taken if negotiations were delayed. In fact, the only obvious reference to time was Mr Kavenagh’s email in early January 2024, which sought a response by a certain date. Moreover, after that date, Mr Kavenagh wrote in March 2024 to ask for an additional tenement to be included in the negotiations, so there was no expression of urgency in the correspondence and seemingly a desire to expand the negotiations. For the same reason, it is not entirely correct to say that there was a seven-month delay between October 2023 and May 2024.
Mr Richmond also contends that, by November 2022, he had received no substantive response and decided on “a different method” for obtaining a heritage survey. The evidence reveals that Mr Richmond twice engaged Mr Murphy to conduct heritage surveys. The first agreement for the conduct of a heritage survey was terminated by Mr Murphy. The second agreement was then entered into on 15 March 2023 and Mr Murphy conducted a survey of the licence area in May 2024. All of those events occurred while Mr Richmond was purporting to negotiate a heritage agreement with Waturta, even to the point of seeking to add a new tenement to the agreement at around the same time Mr Murphy conducted a heritage survey of the licence area.
If Mr Richmond was concerned with delay in the s 31 negotiations, he could have raised the issue with Waturta, and, regardless, his next recourse might have been to the Tribunal, which is an alternative path to a valid grant of the licence. Mr Murphy could not provide consent under s 31(1)(b) of the Native Title Act as he is but one member of the Waturta Applicant. According to the Extract from the RNTC in relation to the Waturta Claim, there is no condition on the authority of the Waturta Applicant, which would mean that the members of the Waturta Applicant may act by majority in the present context: ss 62C(2) and (5) Native Title Act.
Rather, what appears to have occurred is that, while Mr Richmond was purportedly negotiating with Waturta for an agreement which included the conduct of heritage surveys, he had already engaged Mr Murphy to conduct a survey of the licence area without disclosing that engagement to Waturta. Through his agreement with Mr Murphy, Mr Richmond seems to have secured for himself a blanket clearance with no ongoing obligations and no legal protections for Waturta. Either Mr Richmond had, to use the vernacular, ‘gone rogue’ in departing from his instructions to his lawyer or was intentionally duplicitous. Neither paints a pretty picture. As soon as Mr Richmond had what he thought he required from Mr Murphy, he terminated negotiations with Waturta.
What Mr Richmond appears to overlook is that his obligation under s 31(1)(b) is to negotiate in good faith with a view to obtaining Waturta’s “agreement … to the doing of the act”, in this case the grant of the licence. The fact that Waturta’s primary concern in negotiating that agreement was heritage protection is somewhat beside the point. Mr Richmond’s obligation was to negotiate in good faith with Waturta (not Mr Murphy) about an agreement by which Waturta agreed to the grant of the licence. This seems to have been understood when Mr Kavenagh first engaged with Waturta because the agreement proposed by Mr Richmond included Waturta’s consent to the grant of the licence (see [11] above). The existence or otherwise of cultural heritage in the licence area does not alter Mr Richmond’s good faith obligation. Mr Richmond’s actions in summarily terminating the negotiations once he obtained a report from Mr Murphy were, in effect, a repudiation of his obligation to Waturta under s 31(1)(b) of the Native Title Act.

Conclusion

In my view, Mr Richmond’s conduct in this matter does not meet the standard of honesty and fair dealing required for good faith negotiations. From as early as November 2022, while claiming to negotiate in good faith about, amongst other things, a heritage survey, Mr Richmond went behind the back of the rightful negotiation party to commission a heritage survey. This was not disclosed to Waturta through its legal representative until after the heritage survey had been conducted and the negotiations were thereby summarily concluded for the reason that they were said to be no longer necessary. It is, therefore, difficult to conclude that Mr Richmond was negotiating with the aim of reaching agreement with Waturta when he had already entered into a heritage survey agreement with Mr Murphy.

Of course, the purported clearance from Mr Murphy was no substitute for good faith negotiations with Waturta to obtain Waturta’s agreement to the grant of the licence. Alone, Mr Murphy does not speak for Waturta. The heritage report refers to him as the “lead applicant” which simply means he is the first named member of the applicant. Mr Murphy has no authority as an individual, as Mr Richmond was advised by Waturta’s legal representative.
While Mr Richmond made an initial offer, he showed no willingness to engage in any meaningful way with Waturta on the issues of concern to it. Rather, the material suggests Mr Richmond was largely stringing Waturta along while he sought to secure an alternative outcome. Once Mr Richmond obtained what he believed he required from his engagement with Mr Murphy, he terminated the negotiations. At no point did Mr Richmond respond to, or even acknowledge, the issues raised by Waturta regarding Mr Murphy’s lack of authority to speak for Waturta. Again, these actions do not speak to an intention to reach agreement with Waturta.
Mr Richmond’s conduct in this matter is egregious on a number of levels. It not only undermines the authority of the Waturta Applicant and its appointed legal representative, it drives (or perhaps aggravates) discord between the members of the applicant and subverts the negotiations. This type of conduct is what is sometimes pejoratively called “picking a winner”, i.e. identifying an individual to give the answer you are looking for rather than dealing with the duly appointed representatives of a native title party.
It follows that my conclusion is that Mr Richmond has not met his obligation to negotiate in good faith with Waturta with a view to obtaining Waturta’s agreement to the grant of the licence.

Decision

I am satisfied that Mr Richmond did not negotiate in good faith as required by s 31(1)(b) of the Native Title Act and, therefore, I must not proceed to make a determination under s 38. I dismiss the application under s 148(a) of the Native Title Act. It of course remains open to Mr Richmond to make another application in the future. However, in the meantime, the parties may benefit from seeking mediation by the Tribunal under s 31(3) of the Native Title Act.

Ms Nerida Cooley
Member
12 March 2025