WMC Resources Limited/Western Australia/Richard Guy Evans on behalf of the Koara people
[2000] NNTTA 259
•7 July 2000
NATIONAL NATIVE TITLE TRIBUNAL
WMC Resources Limited/Western Australia/Richard Guy Evans on behalf of the Koara people, [2000] NNTTA 259 (7 July 2000)
Application No: WF00/1
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
WMC Resources Limited (applicant/grantee party)
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The State of Western Australia (Government party)
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Richard Guy Evans on behalf of the Koara people (native title party)
DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
Tribunal: Hon CJ Sumner, Deputy President
Place: Perth
Date: 7 July 2000
Catchwords: Native Title – future act- application for a determination in relation to a mining lease – jurisdiction – evidentiary onus on native title party to satisfy the Tribunal that other parties have not negotiated in good faith – consideration of the evidentiary onus where native title party unrepresented – Government and grantee parties have negotiated in good faith.
Legislation:Native Title Act ss 31(1)(b), 36(2)
Cases:Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon EM Franklyn QC, 27 August 1999
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Koara people, NNTT WF99/5, Hon CJ Sumner, 21 December
Western Australia v Taylor (1996) 134 FLR 211
Word & Phrases: ‘negotiate in good faith’
‘burden/onus of proof’
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
Background
The State of Western Australia (‘the Government party’) proposes, pursuant to the Mining Act 1978 (WA), to grant mining lease M36/450 to WMC Resources Limited (‘the grantee party’/‘WMC’). The mining lease is to enable the grantee party to carry out further exploration adjacent to the current mine of Agnew Gold Operations, which is part of WMC Resources Gold Division. The mining lease is of 304.73 hectares located 119 kilometres north-westerly of Leonora in the shire of Leonora. On 23 December 1999, the Tribunal determined that two other mining leases (M36/352 and M36/450) which are adjacent to M36/450 could be granted subject to conditions.
On or before 4 February 1998, the Government party in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’)gave notice of its intention to grant the mining lease.
On 14 February 2000, the grantee party, pursuant to s 35 of the Act, made a future act determination application to the Tribunal.
Richard Guy Evans on behalf of the Koara people was a registered native title claimant over the area of the mining lease at the time the s 29 notice was given and is a native title party in respect of this application by virtue of Claim No. WC95/1 which was registered on 8 September 1995.
Good faith negotiations – jurisdiction
Before conducting an inquiry and making a determination the Tribunal must be satisfied that the Government and grantee parties have negotiated in good faith as required by s 31(1)(b) of the Act. A hearing was conducted on 20 April 2000 to determine this issue at which the grantee party was represented by Mr Grant Donaldson instructed by Mr Geoff Gishubl of Jackson McDonald, solicitors; and the Government party by Mr Graeme Carlin of the Crown Solicitors’ Office. Mr Evans was unrepresented. I decided that the Government and grantee parties had fulfilled their obligations to negotiate in good faith and undertook to provide these reasons.
The matter is to be dealt with under the Act as amended to operate from 30 September 1998. Section 31 contains two obligations:
the Government party must give the native party an opportunity to make submissions to it, in writing or orally regarding the future act (s 31(1)(a)); and
the negotiation parties must negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the future act with or without conditions (s 31(1)(b)).
Section 36(2) of the Act says that if any negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith, the Tribunal must not make a determination.
The Tribunal has said that the practical effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farm Pty Ltd & Anor/Western Australia, NNTT WF99/1, Hon EM Franklyn QC, 27 August 1999; Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Koara people, NNTT WF99/5, Hon CJ Sumner, 21 December 1999.)
Since the introduction of s 36(2) the Tribunal has normally given directions requiring the party contesting good faith negotiations to provide contentions and documents and specify in detail in respect of each of the other parties the matters it relies on. I made the same directions in this matter but because Mr Evans was unrepresented provided him with an opportunity at a Preliminary Conference to explain his position orally.
Mr Evans contended that the Government party and WMC had not negotiated in good faith as required by s 31(1)(b). He said that the Government party had not been in contact with him directly, but acknowledged that until the Goldfields Land Council (‘the GLC’) ceased to act for him in approximately December 1999, negotiations may have occurred with his legal representatives (the GLC and Mr Michael Rynne (a barrister)).
With respect to WMC, Mr Evans said that proper negotiations had not taken place. Again he contended that the negotiations should have been with him and not through the GLC. Although he had some personal discussions with WMC and was provided with a copy of an agreement, he regarded the discussions as ‘small talk’. They did not ‘sit down and negotiate’, he contended.
Although it could not be said that Mr Evans’ oral submissions strictly complied with the Tribunal’s directions to specify in detail the matters he relied on I took the view (given that Mr Evans was unrepresented) that I should not deal with the issue in a summary way. That is, I did not regard it as appropriate in the circumstances to reject Mr Evans’ contentions on the basis of their inadequacy without giving Mr Evans the opportunity to provide evidence and make further submissions at a hearing. I therefore directed that the Government and grantee parties provide written contentions and documentary evidence in support of their position that they had fulfilled the requirements of s 31. The Tribunal must be satisfied that it has jurisdiction to make a determination and in the circumstances of this case I considered that I could only be so satisfied by considering the evidence from the Government and grantee parties. I was not prepared to deal with the matter on the basis that Mr Evans had not satisfied an onus of proof imposed on him and that there was therefore no case to answer by the other parties.
At the hearing the Government party relied on affidavit evidence exhibiting documents which demonstrated the extent of its negotiations. The grantee party submitted a written summary of correspondence and meetings which it said constituted the negotiations. Mr Evans restated the oral contentions he previously made that the other parties had not ‘sat down’ with him ‘to talk’. He did not regard what had happened with the exchange of letters as negotiation. He complained about the actions of his lawyers, the Goldfields Land Council.
Legal principles
The Federal Court and Tribunal have considered the obligation to negotiate in good faith under the Act prior to its amendment in a number of matters. Although the obligation to negotiate in good faith is now imposed on all parties, the principles enunciated under the old Act are still relevant and have been applied in this matter.
On the assumption that it is normally the native title party that will assert that the other negotiation parties have not negotiated in good faith the position, in summary, is that the Tribunal must be satisfied that the Government and grantee parties have negotiated in good faith with the native title parties with a view to obtaining the agreement of the native title parties to the granting of the mining leases with or without conditions. Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’ (Western Australia v Taylor (1996) 134 FLR 211 at 219 (‘Njamal’). Good faith requires the parties to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government and grantee parties as a whole but may have regard to certain indicia which were outlined in Njamal as a guide to whether the obligation has been fulfilled. One of these indicia is whether the negotiation party has done what a reasonable person would do in the circumstances. There is no requirement that the Tribunal be satisfied that the Government party has made reasonable offers or concessions to reach agreement but it is permitted to have regard to the reasonableness or otherwise of them if it assists in the overall assessment of a party’s negotiating behaviour. Lack of good faith in the negotiations by the native title party will be relevant to whether the other parties have fulfilled their obligation and may impose a lesser standard on them.
Good faith negotiations – authority of the GLC and its legal representatives to act
The first issue to be considered is whether the negotiations, which undoubtedly occurred between the Government and grantee parties and the GLC’s lawyers, can be taken into account in determining whether there have been negotiations in good faith with Mr Evans. My conclusion is that they can. There is no doubt that throughout the negotiations, until approximately December 1999, the GLC and its appointed lawyers (Mr Michael Rynne and Mr Neil Bell) were acting for the native title party. Despite Mr Evans general complaint about the GLC the evidence establishes that Mr Evans’ legal representatives were authorised to act for him at all relevant times. There is no evidence to suggest that they acted contrary to his instructions.
Negotiations commenced between Mr Rynne and WMC on 16 March 1998 when there were discussions about a possible offer or proposal. On 12 May 1998, WMC were informed by letter from the GLC that Mr Rynne had been appointed as consultant legal adviser to the Koara native title claimants. Thereafter, there were several occasions when the authority of the GLC (and its legal representatives) to act for the native title party were either implicitly or explicitly confirmed. These were:
a letter from Mr Evans to DME dated 6 August 1998 confirming that Mr Rynne was the legal representative of the Koara people;
a letter from Mr Neil Bell to WMC dated 1 October 1999 confirming that he had authority to represent the native title party;
a Tribunal mediation meeting on 4 October 1999 at which Mr Evans confirmed that the GLC had authority to negotiate on behalf of Koara; and
a site inspection involving all parties (and the Tribunal) held on 3 November 1999 which was attended by both Mr Evans and Mr Bell.
Good faith negotiations generally
The first stage of negotiations involved the native title party and WMC. After the initial meeting on 16 March 1998 until approximately 27 April 1999 there was correspondence and discussions which constituted negotiations in good faith by the grantee party. In particular:
a letter to Mr Rynne of 12 June 1998 setting out the basis of an offer or proposal by WMC;
a letter of reply from Mr Rynne dated 21 July 1998 advising of the conditions that he was prepared to recommend to his client be imposed on the grant of the tenement;
a facsimile from WMC dated 28 July 1998 indicating that the conditions to be recommended were acceptable to WMC;
a letter from Mr Rynne to WMC dated 18 September 1998 outlining his instructions on the WMC proposal;
a meeting between Mr Rynne and WMC, on 25 September 1998, to discuss the proposal;
a facsimile to Mr Rynne, from WMC, of 30 September 1998 outlining the WMC proposal in detail;
on 16 October 1998 and 11 November 1998, WMC offered to attend meetings of the Koara claimants;
a WMC letter of 5 February 1999 sent directly to Mr Richard Evans (and Mr Ted Evans – now deceased) which attached the WMC proposal; and
visits by WMC representatives to Mr Richard Evans at his home in Leonora on 16 March 1999 at which the WMC proposal was discussed.
Further, on two occasions during this period WMC wrote to DME requesting that no s 35 future act determination application be made by the Government party as it may jeopardise negotiations. I regard this action as evidence of the grantee party’s good faith in the negotiations.
On 27 April 1999, WMC requested of DME, by letter, that its application for the mining lease be given priority status and that the DME commence negotiations. The Government party then became involved in the negotiations. The negotiations thereafter can be summarised as follows.
On 16 June 1999, DME sent a letter to the native title party and WMC in the standard form it uses to commence negotiations. It contained background information about the mining lease, requested WMC to provide to the native title party and DME information about the company and the proposed mining lease, including whether any Aboriginal heritage surveys had been carried out, information about DME’s administration of mining tenements and conditions it proposed to impose on the grant of this mining lease, a guide to what constitutes negotiations in good faith and a copy of the DME negotiation protocol. The letter also requested the native title party to make a submission regarding the grant of the mining lease which fulfilled the Government party’s obligation under s 31(1)(a) of the Act.
On 2 July 1999, WMC provided the information requested of it to the native title party and Government party.
On 24 August 1999, after again requesting a submission from the native title party, the Government and grantee party, in accordance with s 31(3) of the Act, requested the Tribunal to mediate.
On 13 September 1999, a mediation meeting conducted by the Tribunal was held involving all parties. Mr Neil Bell of the GLC requested a mediation meeting involving Mr Evans personally because of some concerns about his representing Mr Evans and his authority to negotiate.
On 4 October 1999, a further mediation meeting was held by telephone and attended by Mr Evans at which a proposed site visit was discussed.
There was correspondence relating to the site visit proposed for 3 November 1999.
On 3 November 1999, a site visit of the mining lease, involving all parties and the Tribunal was held at Agnew Gold Operations. This involved a WMC briefing about the area, the drilling which had occurred, the mineralisation results and proposed activity and an outline of the negotiations which had taken place. The GLC undertook to respond to the proposal made by WMC to Mr Michael Rynne on 30 September 1998, but no response was in fact received.
On 16 December 1999, a further mediation meeting was held chaired by the Hon EM Franklyn QC, Deputy President of the Tribunal. No progress was made because the GLC’s representative (Paul Tolcon from Mony de Kerloy, solicitors) was not familiar with the matter or authorised to advance the negotiations.
On 22 December 1999, WMC advised all parties that because of the lack of progress it would reluctantly be making a s 35 application if there were no positive developments by 31 January 2000.
In the lead up to the mediation meeting on site on 3 November 1999, discussions occurred about its nature. The GLC asserted that the meeting was not to be for a site survey, nor for negotiations, but only for the purpose of information about WMC’s proposed activities. WMC wanted the meeting to hear of WMC’s proposals and its agreement proposal of 30 September 1998 and allow parties to raise issues about the proposed activity on the mining lease. According to the Government party’s record of the meeting ‘no formal negotiation took place’. In my view this meeting was clearly part of the negotiations and can be taken into account in determining this issue. Even if no formal negotiations took place (an issue which it is not necessary to decide) an information meeting of this kind is clearly part of the broad negotiation process which the parties are obliged to engage in by s 31(1)(b). A native title party cannot by asserting that a meeting is simply an information session and not to involve negotiations thereby exclude the Tribunal’s consideration of it for the purpose of deciding if good faith negotiations have occurred.
My findings are that both the Government and grantee parties have negotiated in good faith as required by s 31(1)(b) of the Act. There is clear evidence that the grantee party, over a period of more than 18 months, has made genuine attempts to negotiate an agreement with the native title party. A proposal by WMC had been on the table for over a year but not properly responded to by the native title party.
Negotiations which occurred after the making of the s 35 application can not be taken into account in deciding the issue. Following a request by me at a preliminary conference, a representative of WMC met with Mr Evans on 6 April 2000, at Leonora, to see if agreement could be reached between them. Mr Evans advised WMC that the Koara claimants wished to negotiate a regional agreement and not negotiate on a tenement by tenement basis. I cannot have regard to the actual negotiations that occurred at that meeting because they are clearly not part of negotiations which must occur before the s 35 application is lodged. However, the fact that WMC were prepared to accede to my request to meet with Mr Evans supports my conclusion that they have acted in good faith in relation to the negotiations generally.
The Government party was not as active as the grantee party in the negotiations as it was clear that the main focus of the negotiations was on resolving issues between the native title party and grantee party. No submissions were made to the Government party by the native title party requesting the Government party to make any substantive offers. The Government party participated by providing information, proposing conditions it intended to impose on the grant, liaising with the parties, requesting the Tribunal to mediate and attending meetings. In the circumstances, it was not required to do more to fulfil its obligations.
Decision
The Government and grantee parties have fulfilled the obligation to negotiate in good faith as required by s 31(1)(b) of the Native Title Act 1993 (Cth) and there is no basis on this ground for the Tribunal not to assume jurisdiction to conduct an inquiry and make a determination. I note that since making this decision on 20 April 2000 a further jurisdictional issue has arisen based on a contention arising from the Federal Court decision in Western Australia v Ward (2000) 170 ALR 159 that native title has been extinguished over the area of the mining lease.
The Hon C.J. Sumner
Deputy President
7 July 2000
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