Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland
[2012] NNTTA 93
•23 August 2012
NATIONAL NATIVE TITLE TRIBUNAL
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 93 (23 August 2012)
Application No: QF12/2
IN THE MATTER of the Native Title Act 1993 (Cth)
and
IN THE MATTER of an inquiry into a future act determination application
Xstrata Coal Queensland Pty Ltd, Sumisho Coal Australia Pty Limited,
ICRA Rolleston Pty Ltd
(Grantee party)
- and -
Mark Albury, Charles Stapleton, Sharleen Leisha, Marlene Leisha, Carol McLeod & Anor on behalf of Karingbal #2 (First native title party)
Brendan Wyman, Patricia Fraser, Helen Coulahan, Sheryl Lawton, Keelen Mailman, Robert Raymond Robinson, Floyd Robinson, Randall Johnson and Robert Ernest Mailman on behalf of the Bidjara People (Second native title party)
- and -
State of Queensland (Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: Graeme Neate
Place: Brisbane
Date: 23 August 2012
Hearing Dates: 19 March, 17 April, 27 April, 30 April, 9 May 2012
Representatives:
First Native title party: Redmond & Redmond, Solicitors
Second native title party: Mr Trevor Hauff, Trevor Hauff Lawyers
Grantee parties: Mr Ben Zillmann and Ms Caitlin Wilson, Allens
Government party: Ms Sara Newrick, Lawyer, on behalf of the Department of Natural Resources and Mines
Catchwords: Native title – future act – proposed grant of Mining Lease – future act determination application – two native title parties – separate negotiations about grant of proposed tenement – whether Grantee party and Government party negotiated in good faith with each native title party – directions restricting disclosure of some evidence – legal principles on good faith negotiations
Native title – future act – First native title party – whether Grantee party and Government party negotiated in good faith – apparent split in native title party – failure of Government party to make an offer – whether Government party failed to negotiate – transfer of the Government party’s obligation to pay compensation to the Grantee party – ‘dual deed’ system – Grantee party’s offer of compensation – basis for calculation of offer – whether taking a rigid or non-negotiable position – whether a ‘sham’ or unrealistic offer – whether failure of Grantee party to consider issues raised by ss. 33 and 39 of Native Title Act – quality of the parties’ conduct.
Native Title – future act – Second native title party – whether Grantee party and Government party negotiated in good faith – delay in assertion that the Government party did not act in good faith - failure of the Government party to meet with or contact the native title party – ‘dual deed’ system – transfer of the Government party’s obligation to pay compensation to the Grantee party – failure to agree to payments of costs associated with negotiation meetings – Grantee party’s offer of compensation – basis for calculation of offer – whether taking a rigid or non-negotiable position – whether a ‘sham’ or unrealistic offer - failure by Second native title party to make counter proposals – failure of Grantee party to consider issues raised by s.33(1) of Native Title Act – quality of the parties’ conduct.
Legislation: Aboriginal Cultural Heritage Act 2003 (Qld)
Mineral Resources Act 1989 (Qld)
Mining Act 1978 (WA)
Native Title Act 1993 (Cth) – ss. 24MB, 24MD, 26, 29, 30, 30A, 31, 33, 35, 36, 38, 39, 48, 51, 51A, 53, 75, 123, 154, 155, 162, 164, 190B, 238, 240
Cases:Austmin Platinum Mines Pty Ltd v Western Australia (2010) 258 FLR 216
Brownley v Western Australia (1999) 95 FCR 152
Cox v Western Australia (2008) 219 FLR 72
Crowe v Western Australia (2008) 218 FLR 429
Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141
FMG Pilbara Pty Ltd/Cheedy/Western Australia [2009] NNTTA 38
FMG Pilbara Pty Ltd v Wintawari Guruma Aboriginal Corporation (2009) 258 FLR 418
The Griffin Coal Mining Co Pty Ltd v Nyungar People (2005) 196 FLR 319
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52
Jabiru Metals Ltd v Victoria (2010) 257 FLR 443
Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2010] NNTTA 211 (19 December 2010) Deputy President Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (2 June 2006) Deputy President Sumner
Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375
North Ganalanja Aboriginal Corporation & Waanyi People v Queensland (1996) 185 CLR 595
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340, 245 ALR 436
Placer (Granny Smith) v Western Australia (1999) 163 FLR 87
Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited [2006] NNTTA 153 (24 November 2006) Deputy President Sosso
South Blackwater Coal Ltd v Queensland (2001) 165 FLR 232
Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303
Thomas v Western Australia (1996) 133 FLR 124
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, [2003] NNTTA 82 (9 July 2003) Deputy President Sumner
Walley v Western Australia (1999) 87 FCR 565
Western Australia v Daniel (2002) 172 FLR 168
Western Australia v Dimer (2000) 163 FLR 426
Western Australia v Taylor (1996) 134 FLR 211
Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/ Leslie Hayes, Glenys Hayes, Judy Hayes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People [2001] NNTTA 18 (9 March 2001) Deputy President Sumner
White Mining (NSW) Pty Ltd v Franks (2011) 257 FLR 205
WMC Resources Limited/Western Australia/Richard Guy Evans (Koara) [2000] NNTTA 259 (7 July 2000) Deputy President Sumner
REASONS FOR DECISION
Introduction
On 8 February 2011, the State of Queensland (‘the Government party’) gave notice under s. 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant Mining Lease (ML) 70415 (‘the proposed tenement’) to Xstrata Coal Queensland Pty Ltd (75%), Sumisho Coal Australia Pty Limited (12.5%) and ICRA Rolleston Pty Ltd (12.5%) (‘the Grantee party’) pursuant to the Mineral Resources Act 1989 (Qld). In accordance with s. 29(5) of the Act, 30 March 2011 was specified as the notification day.
The notice stated that the grant of the proposed tenement would authorise ‘the holder to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term not exceeding twenty five (25) years, with the possibility of renewals for a term not exceeding twenty five (25) years’. The notice published in the Koori Mail on 9 March 2011 stated that the grant would be for a term not exceeding ‘thirty (30) years’ with the possibility of renewals for a term not exceeding ‘thirty (30) years’. No party took issue with the discrepancy between the original notice and the notice published in the Koori Mail. No party put in issue whether the notice was provided by the Government party in accordance with s. 29 of the Act. I am satisfied that the notice was validly given and hence have proceeded on the basis that the Tribunal can exercise its power to consider the present application.
The proposed tenement: The proposed tenement is described as being located approximately 20 kilometres north-west of Rolleston in Central Queensland, within the local government area of Central Highlands Regional Council. It is approximately 270 kilometres west of Gladstone and 120 kilometres south-west of Emerald. The approximate area of the proposed tenement is 6,271 hectares. If granted, the proposed tenement would form part of the expansion of the existing Rolleston Coal Mine located on ML 70307 and Mineral Development Licence MDL227.
The proposed tenement is one of four mining lease applications made by the Grantee party as part of the Rolleston Coal Expansion Project which, if granted, might extend the life of the Rolleston Coal mine by approximately 20 years to 2045 and increase production from 10 million tonnes per annum up to a total of 20 million tonnes per annum. The other mining lease applications are MLA 70416, MLA 70418 and MLA 70458. The mining lease application area (of which the proposed tenement is a part) covers some 12,500 hectares.
An unusual feature of these proceedings is that the proposed tenement is wholly within the external boundaries of two registered native title claims:
(a)the Karingbal #2 native title determination application (QUD23/06) (‘the Karingbal #2 claim’) which was entered on the Register of Native Title Claims on 24 March 2006, and
(b)the Bidjara People native title determination application (QUD 216/08) (‘the Bidjara claim’) which was entered on the Register of Native Title Claims on 12 September 2008.
For the purpose of these proceedings, the registered native title claimant for the Karingbal #2 claim is referred to as the ‘First native title party’ and the registered native title claimant for the Bidjara claim is referred to as the ‘Second native title party’. Those native title claims are the subject of proceedings in the Federal Court of Australia. I understand that a hearing in relation to those claims is scheduled to commence not earlier than March 2013.
Although the proposed tenement has an area of 6,271 hectares, the Grantee party contends that native title rights have been extinguished over the majority of the area by previous grants of tenures. A table, ‘MLA 70415 Native Title Extinguishment Assessment,’ lists nine lots and two roads that together cover the area of the proposed tenement. The tenures include five fee simple parcels, one Grazing Homestead Perpetual Lease, one Grazing Homestead Freeholding lease, one Perpetual Lease and one Lease of Preferential Pastoral Holding. According to the table, the grant of tenures between 1892 and 1986 extinguished native title over all but one parcel.
The only area where native title has not been extinguished is Lot 5055 on PH977, Lease of Preferential Pastoral Holding PPH 37/5055, known as the Mt Kelman pastoral holding. According to the table, the Preferential Pastoral Holding is not a previous exclusive possession act under the Act. It has an area of approximately 1,449 hectares, some 23 per cent of the area of the proposed tenement.
On 4 October 2011, the legal representative of the Grantee party provided the table to the legal representative of the First native title party (and to Daniel Lavery of counsel who was, at that time, representing Charles Stapleton, one of the people who together constitute the First native title party). According to the Grantee party’s legal representative, neither of those lawyers nor the First native title party have ever contested the correctness of the Grantee party’s view of the extent of the extinguishment of native title rights and interests in relation to the area of the proposed tenement.
No party has taken issue with the Grantee party’s analysis of the effect of tenures on the extent to which native title might or would not be recognised in relation to parcels of land covered by the proposed tenement.
The negotiations: The First native title party and the Second native title party is each a negotiation party (s. 30A). In effect, two sets of negotiations were conducted (or attempted) involving the Grantee party and, to a lesser extent, the Government party: negotiations with the First native title party and negotiations with the Second native title party. The bifurcation of negotiations occurred because:
(a)the native title parties were, and are, in dispute as to which group has native title rights and interests in relation to the area of the proposed tenement
(b)the Grantee party needed to reach agreement with each native title party but considered it unlikely that the two native title parties would meet together or that a joint meeting would be conducive to reaching agreement with either
(c)although the Grantee party advised each native title party that it was also negotiating with the other, neither native title party requested a meeting with the other present, and
(d)although the First native title party met with the Grantee party for negotiations, the Second native title party did not do so, as they could not agree with the Grantee party about the funding arrangements for negotiation meetings.
No agreement was reached in accordance with s. 31(1)(b) of the Act with the native title parties about the grant of the proposed tenement.
On 8 March 2012, Allens Arthur Robinson (now Allens), the legal representative of the Grantee party, lodged with the National Native Title Tribunal (‘the Tribunal’) pursuant to ss. 35 and 75 of the Act, a future act determination application. The application was made more than six months after the notification day (see s. 35(1)(a)).
On 9 March 2012, I was appointed as the Member to constitute the Tribunal for the purpose of conducting the future act determination application inquiry (see s. 123(1)(c)).
A preliminary conference was convened on 19 March 2012. Directions hearings were held on 17, 27 and 30 April 2012 and a listing hearing was held on 9 May 2012. Representatives of parties attended in person or participated by telephone.
Legal representation of the Karingbal #2 people – a preliminary issue
The solicitors on the record for the applicant in relation to the Karingbal #2 claim are Redmond & Redmond. That firm also appears for the First native title party in relation to this future act determination application.
At the time of the preliminary conference on 19 March 2012 there was a possibility that Charles Stapleton, one of the people who together comprise the applicant in the Karingbal #2 claim, might seek to be represented separately in these proceedings by Daniel Lavery of counsel. Mr Lavery was given notice of the preliminary conference but did not appear. Given that Redmond & Redmond are the legal representatives of the First native title party, directions were made to the effect that:
(a)on or before 26 March 2012, Mr Lavery was at liberty to provide to the Tribunal and each of the other parties a submission in relation to whether the Tribunal should permit individual persons who comprise the applicant in the Karingbal #2 claim to be separately represented and to make submissions in relation to this future act determination application
(b)if such a submission was made then, on or before 2 April 2012, the legal representatives of the parties were to provide to the Tribunal and each of the other parties with their submissions in reply.
Mr Lavery did not provide such a submission and took no part in these proceedings.
However, Mr Lavery did take an active role in some of the negotiations between the Grantee party, the Government party and the Karingbal #2 people (or at least the Karingbal person on whose behalf he was acting in a ‘support role in an unpaid capacity’). The practical implications of Mr Lavery’s involvement in the negotiations for one of the issues in these proceedings will become apparent later in these reasons (see the summary at [193] to [196]).
The ‘good faith’ issue – ss. 31(1)(b), 36(2), 151(2)
Paragraph 31(1)(b) of the Act states that the negotiation parties ‘must negotiate in good faith’ with a view to obtaining the agreement of ‘each of the native title parties’ to the doing of the future act or the doing of the future act subject to conditions to be complied with by any of the parties. The term ‘negotiation parties’ is defined in s. 30A to include the Government party, any native title party and the grantee party. Any negotiation party may, pursuant to ss. 35 and 75, apply to the Tribunal for a determination pursuant to s. 38 if at least six months have passed since the notification day and no agreement of the kind mentioned in s. 31(1)(b) has been made in relation to the future act.
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 pursuant to s. 38 (see s. 36(2)). The implications of s. 36(2) were explained by the Full Federal Court in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 (‘Cox’) (at [11]) as follows:
... the statutory prohibition at s 36(2) affects the ‘power’ of the Tribunal to make an arbitral determination rather than its ‘jurisdiction’. The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is a function of the jurisdiction conferred on the Tribunal.
During the preliminary conference on 19 March 2012, the First native title party and the Second native title party each advised that it would contend that the Grantee party had not negotiated in good faith.
Directions were made on 19 March 2012 requiring any native title party that did not agree or took issue whether the Government party and the Grantee party had negotiated in good faith to provide to the Tribunal and to each of the other parties a statement of contentions and supporting documentary evidence in relation to the good faith issue. Such statements were to be provided by 11 April 2012. That date was varied subsequently to 13 April 2012.
The Government and Grantee parties were required to provide their own statements of contentions and supporting documentary evidence on the good faith challenge by 26 April 2012. That date was varied subsequently to 1 May 2012. The Grantee party and the Government party each lodged their statement of contentions and supporting documentary evidence with the Tribunal on 1 May 2012.
Each native title party was to reply by 3 May 2012. That date was varied subsequently to noon on 8 May 2012. Those replies were lodged on 8 May 2012 by the First native title party and, without further variation of the Directions, on 10 May 2012 by the Second native title party. By the end of the process it was clear that each native title party also contended that the Government party did not negotiate in good faith with it.
Extensive written statements of contentions and evidence were provided to the Tribunal and the parties in response to Directions made by the Tribunal. I was satisfied that I could make a decision in relation to the good faith issue by considering the documents provided to the Tribunal. In accordance with s. 151(2) of the Act, and with the agreement of the negotiation parties, I decided that a hearing in relation to the good faith issue was not necessary, and have proceeded to deal with the issue ‘on the papers’.
Directions restricting disclosure of some documents – s. 155
Some of the dates in the Directions made on 19 March 2012 were varied because subsequently two issues arose in relation to whether restrictions should be imposed on the disclosure of some of the information to be provided to the Tribunal and the negotiation parties in accordance with those Directions.
The first issue arose initially in relation to some paragraphs in the statement of contentions of the First native title party and Attachments 3 and 4 to that statement of contentions. Some of the concerns were resolved in a directions hearing on 17 April 2012. The only remaining issue was whether the information in Attachment 3 (the minutes of the meeting between most members of the First native title party and representatives of the Grantee party, the Government party, and the First native title party on 4 and 5 October 2011, including some material relating to cultural heritage matters) should not be disclosed to the Second native title party.
As noted earlier, the proposed tenement is wholly within the outer boundaries of the Karingbal #2 claim area and the Bidjara claim area. These claims overlap each other and are the subject of proceedings in the Federal Court.
The negotiations between the Grantee party, the Government party and each native title party have proceeded separately. In other words, the negotiations with the First native title party have progressed independently of the negotiations with the Second native title party. Each native title party contended separately from the other that the Grantee party and the Government party did not negotiate in good faith with it.
The First native title party was concerned not to disclose to the Second native title party information, including culturally sensitive information, that was disclosed to the Grantee party and Government party in the course of negotiations on 4 and 5 October 2011. Those negotiations apparently did not involve or refer to the separate negotiations between the Second native title party, the Grantee party and the Government party.
Section 155 of the Act states:
Tribunal may prohibit disclosure of evidence
The Tribunal may direct that:
(a)any evidence given before it; or
(b)the contents of any document produced to it;
must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the Tribunal specifies. This section does not limit the Tribunal’s powers under sections 154 and 154A.
Section 154A applies to native title application inquiries, and so does not apply to these proceedings. Section 154 provides that hearings in relation into right to negotiate applications covered by s.75 are to be held in public except in special circumstances. Subsection 154(4) provides that, in determining if part of a hearing is to be held in private, the Tribunal must have due regard to the cultural and customary concerns of Aboriginal peoples.
Section 155 confers a broad discretion on the Tribunal. It does not prescribe the ground or grounds on which directions may be made. By inference from the reference to s. 154, directions may be made to deal with the cultural and customary concerns of a native title party. Having heard from the representatives of each negotiation party on 27 April 2012, and from representatives other than Trevor Hauff (the legal representative of the Second native title party) on 30 April 2012, I was satisfied that directions of this type should be made.
Accordingly, on 27 April 2012, directions were made under s. 155 of the Act to the effect that:
(a)while the Karingbal People #2 continue to assert confidentiality in relation to Attachment 3 to their statement of contentions, the contents of Attachment 3 must not be disclosed to any person but the Grantee party and the Government party and must only be used for the purposes of these proceedings and any related proceedings, and
(b)any copy of any written submissions or contentions that a party intends to provide to the Second native title party must be edited to ensure that it does not disclose the contents of Attachment 3.
In short, the contents of Attachment 3 are not to be disclosed by any party to the Second native title party.
The second issue arose in relation to certain documents that the Government party intended to provide as some of the annexures to the Affidavit of Julianne Maree Butteriss dated 26 April 2012, which Affidavit is Annexure 7 to the statement of contentions of the Government party. Ms Butteriss is the Principal Project Officer, Senior State Negotiator with the Department of Natural Resources and Mines.
The application for appropriate directions was made by the Government party (rather than the First native title party) because the Government party had in its possession material relating to the First native title party that might be of a culturally sensitive nature. The material had been provided to the Government party in the course of negotiations by or in relation to members of the Karingbal native title claim group rather than by the First native title party. The Government party wanted to include that material as part of its contentions in relation to the good faith issue. In light of the restricted evidence directions made on 27 April 2012 on the ground of cultural concerns advanced by the First native title party, the Government party requested an opportunity to make submissions to the Tribunal in relation to the material.
At the directions hearing on 30 April 2012, the representative of the First native title party supported the application for directions made by the Government party. Directions were made on 1 May 2012 to the effect that:
(a)the contents of specified annexures to Ms Butteriss’s Affidavit (which contain information relating to connection material, or sites of significance, or persons with knowledge of Aboriginal traditions, or cultural heritage agreements, or any combination of those topics) must not be disclosed to any person but the Grantee party and the First native title party and must only be used for the purpose of these proceedings and any related proceedings, and
(b)any copy of any written submissions or contentions that the First native title party intends to provide to the Second native title party must be edited to ensure that it does not disclose the contents of the documents listed in Direction 3.
In the course of the directions hearings on 27 and 30 April 2012, when considering the applications to make directions under s. 155, and the parties’ submissions, I made it clear that such Directions would not limit my capacity to rely on, refer to and quote from the restricted material in giving my reasons for decision in this matter.
Such an approach is appropriate, if not necessary, having regard to the sections of the Act pertaining to the conduct of future act determination inquiries, particularly ss. 154, 162 and 164. In addition to the provision that hearings must be held in public except in special circumstances (s. 154), the Act provides that:
(a)after holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry (s. 162(1))
(b)the Tribunal must state in the determination any findings of fact upon which it is based (s. 162(2)), and
(c)determinations must be in writing and be given to each of the parties (s. 164(1)).
The clear import of those provisions is that, if it is necessary to rely on evidence to make findings of fact, the Tribunal should set out the facts on which those findings are made, even when directions have been made under s. 155. I note, for completeness, that s. 178 provides that, if an appeal is made to the Federal Court from a determination of the Tribunal relating to a right to negotiate application, the Tribunal must send to the Court all documents that were before the Tribunal in relation to the inquiry.
The effect of s. 162(2) was considered by a Full Court of the Federal Court of Australia in Parker v Western Australia (2008) 167 FCR 340, 245 ALR 436. The Full Court heard an appeal in relation to a determination made by the Tribunal about an objection to the expedited procedure. The Tribunal had made directions under s. 155 in relation to certain affidavits sworn by members of the native title party claimant group and other evidence. In the reasons for determination, the Tribunal referred to those documents only to the extent necessary to explain its decision and did not include material that should ‘according to customary law and traditions remain confidential’ (Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65 (2 June 2006) at [24]). An appeal against the Tribunal’s determination was dismissed by a single judge of the Federal Court (Parker on behalf of theMartu Idja Banyjima People v Western Australia [2007] FCA 1027). That decision was appealed to a Full Court (Moore, Branson and Tamberlin JJ).
In their reasons for judgment that, in effect, upheld the determination of the Tribunal, each member of the Full Court expressed views about the statutory obligations on the Tribunal, and the way in which the Tribunal could satisfy those obligations in circumstances where directions are given under s. 155 in relation to evidence on which the Tribunal makes finding of fact.
Justice Moore referred to two features contained in s. 162(2):
(a)the language in the expression ‘any findings’ is of ‘wide import’, and
(b)that the findings be those upon which the determination was based.
In his Honour’s opinion, the Tribunal is ‘obliged to set out the findings of fact it makes which lead to the determination of the matters covered by the enquiry’. The statutory obligation to ‘reveal fully the found facts upon which a decision is based’ is understandable given the significance of the decision (at [7]). Where there are sensitivities about the publication of a found fact, that obligation might be discharged if the Tribunal incorporates by reference the relevant evidence without repeating it (at [17]).
Although Justice Branson considered that this was not an appropriate case for careful analysis of the ‘extent of the obligation imposed’ on the Tribunal by s. 162(2), she observed that two ‘principal purposes’ may be assumed to be intended to be served by s. 162(2), namely:
(a)a party dissatisfied with the determination can understand how the Tribunal arrived at its determination and, in particular, can form a view on whether the determination was lawfully made, and
(b)to facilitate review by the Court of the Tribunal’s determination should any party exercise its right to appeal pursuant to s. 169.
Having regard to those purposes, her Honour stated that the likely intention of the legislature was to require the Tribunal to set out ‘such of its findings of fact as were critical to the making of its determination’ (at [50]). In her view, it was unlikely to have been the intention of the legislature in enacting s. 162(2) that the Tribunal be obliged to record in its reasons for determination ‘every aspect of the evidence and other material before it, whether controversial or not, upon which it placed reliance in making its determination’ (at [49]).
Justice Branson noted that, in the case on appeal, the Tribunal was concerned not to publish information confidential to the native title party (at [43]). Her Honour considered that the Tribunal’s reluctance to refer in its determination to the details of evidence which was of a confidential nature was ‘entirely understandable’. In that case it was unnecessary to do so as the Tribunal was able to identify the ‘uncontested evidence’ upon which it made the relevant finding and so enabled the parties (and the Court on appeal) to know the factual basis of its finding (at [53]).
Writing in general terms, Justice Tamberlin stated:
In giving reasons, it may be appropriate for the tribunal to refrain from reciting or even referring specifically to detailed evidence disclosed in confidence. It is a question of striking a reasonable balance between the sensitivity of certain evidence and the appropriate extent to which that evidence needs to or should be recited when setting out findings. (at [76])
Justice Tamberlin noted that, in the matter before the Court, the Tribunal had made confidentiality directions in respect of ‘sensitive material’ in detailed affidavits and referred to them in so far as it was ‘necessary to explain the reasons for its determination’. The Tribunal’s reasons reflected ‘a concern to respect this need for confidentiality’ (at [61]). Although the relevant evidence was not spelt out in the Tribunal’s reasons due to its highly confidential nature, his Honour considered that the reasons sufficiently demonstrated that it was taken into account. Consequently, he was satisfied that ‘the essential findings of fact’ were ‘sufficiently stated’ by the Tribunal as required by s. 162(2) (at [75]). His Honour observed that, in that case, the specific detailed evidence was accepted without contradiction and the factual basis for the Tribunal’s finding was made known to the parties who had access to the relevant evidentiary material, albeit on a confidential basis (at [76]).
As Deputy President Sosso observed in his reasons for determination in Crowe v Western Australia (2008) 218 FLR 429 (‘Crowe’) at [33]:
... while each of the Judges dismissed the appeal there was a marked variety of approaches to how s 162(2) should be applied by the Tribunal when setting out its reasons for its determination. What is clear however is that the Tribunal is under an obligation to set out clearly the factual basis of its determination. The obligation imposed by s 162(2) cannot be avoided because of issues relating to cultural or customary concerns. Wherever possible, especially when directions have been made pursuant to s 155 to restrict the disclosure of documents produced, the material which has cultural or customary sensitivity should only be disclosed to the extent required by the law and, where possible, direct quotation from affidavits should be avoided. Unnecessary details of such culturally sensitive material should not be set out in the reasons.
He continued:
This obligation ... does require that the Tribunal use its discretion to identify and set out in an appropriate form, the key material from which it has drawn inferences. How this is best effected is a matter that can only be resolved in each inquiry having regard to the nature of the material produced, the attitude of the parties and whether it is contested or uncontested. (at [35])
In light of the Full Court’s reasons for judgment and the Tribunal’s determination in Crowe, I intend to refer to the aspects of the restricted material that are relevant to my decision as to whether the parties have negotiated in good faith and, where appropriate, will quote or closely paraphrase passages from the restricted material. To that extent, if it is necessary to do so, the directions made under s. 155 are hereby varied accordingly.
Material before the Tribunal
The statement of contentions and supporting documentary evidence of the First native title party were lodged with the Tribunal on 13 April 2012. The statement of contentions and supporting documentary evidence of the Second native title party were lodged with the Tribunal on 13 April 2012, and provided to the Government party and the Grantee party on 16 April 2012.
In accordance with Directions 3, 4 and 5 made on 19 March 2012 as varied on 11, 17, 27 and 30 April 2012, the negotiation parties lodged the following documents with the Tribunal in relation to the ‘negotiate in good faith’ issue:
(a)Statement of contentions on behalf of the First native title party, and Attachments 1, 2, 3 and 4
(b)Statement of contentions on behalf of the Second native title party and witness statement by Trevor George Hauff and Annexures TGH1 to TGH7
(c)Statement of contentions on behalf of the Government party and covering letter, Annexure 7 (entire and redacted versions), document list, Annexures 1 to 6 and 8
(d)Statement of contentions on behalf of the Grantee party and covering email, statement of contentions (redacted version), Affidavit Ben Zillmann Re Bidjara People, Affidavit of Ben Zillmann Re Karingbal People #2, Affidavit of Ben Zillmann Re Karingbal People #2 (redacted version) and Affidavit of Ben Zillmann Re Meeting Minutes (this Affidavit was not provided to the Second native title party)
(e)Reply on behalf of the Second native title party to the Grantee party contentions
(f)Submissions on oral hearing on behalf of the Second native title party
(g)Submissions on behalf of the Second native title party in support of the statement of contentions
(h)Statement in reply on behalf of the First native title party (entire and redacted versions)
(i)Statement of contentions in reply on behalf of the Government party (entire and redacted versions), Affidavit of Sara Newrick in support, covering letter, statement of contentions regarding oral hearing
(j)Response on discrepancies on behalf of the Grantee party (entire and redacted versions)
(k)Reply by First native title party to Grantee party’s response on discrepancies (entire and redacted versions), and
(l)Submissions on requirement for oral hearing on behalf of the Grantee party.
The Directions made under s. 155 restricting disclosure of specified information apply in relation to:
(a)Attachment 3 to the statement of contentions on behalf of the First native title party, and
(b)Part of Annexure JMB1; and all of Annexures JMB12; JMB13; JMB14; JMB15; JMB16; JMB17; JMB18; JMB19; JMB21; JMB22; JMB24; JMB26; JMB27; JMB28; JMB31; JMB32; JMB33; JMB34; JMB35; and JMB36 to the Affidavit of Julieanne Maree Butteriss dated 26 April 2012, which Affidavit is Annexure 7 to the statement of contentions by the Government party provided in accordance to Direction 4 in relation to these proceeding 19 March 2012 (as amended).
The ‘good faith’ issue – four components
As noted earlier, two separate sets of negotiations were conducted or attempted: negotiations involving the First native title party and negotiations involving the Second native title party. Given the contentions by the native title parties, it is appropriate to consider separately whether:
(a)the Government party negotiated in good faith with the First native title party
(b)the Grantee party negotiated in good faith with the First native title party
(c)the Government party negotiated in good faith with the Second native title party, and
(d)the Grantee party negotiated in good faith with the Second native title party.
Similar submissions were made in relation to some of those issues, and portions of the evidence are relevant to the resolution of more than one issue. Dealing with the four main issues separately and in that order requires some repetition of references to parts of the evidence and legal principles. Where appropriate, and to reduce the amount of replication, cross-references are made to passages in these reasons where an issue is dealt with in greater detail.
Before turning to the evidence and contentions provided by each party, it is useful to outline the legal context within which the ‘good faith’ issue is to be decided.
Legal principles in relation to future act negotiations in ‘good faith’ – an overview
Subsection 31(1) provides that unless a s. 29 notice includes a statement that the Government party considers that the future act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act (with or without conditions to be complied with by any of the parties).
The obligation is to negotiate in good faith with a view to obtaining each native title party’s agreement to the doing of the future act. A minimum six month period after notification is prescribed before arbitration can be sought. As Member O’Dea pointed out in FMG Pilbara Pty Ltd/Cheedy/Western Australia ([2009] NNTTA 38 at [67]):
the Act does not require any party to negotiate in any physical sense for a period of six months. What is required is that the parties negotiate in good faith with a view to obtaining an agreement with the native title party to the doing of the [a]ct ... . The actual period of negotiation which would need to take place in order to establish that the parties had negotiated in good faith, is not necessarily related to the length of time spent negotiating. Rather it is the quality of the process that will be determinative of the question of whether the parties have engaged in the process in good faith.
Once the six month period has elapsed it is open to any negotiation party to exercise its statutory right to seek a future act determination. It is not necessary that the negotiations have reached any particular ‘stage’ before a party seeks arbitration. This was explained by the Full Federal Court in Cox (at [19]) as follows:
The expression “negotiate in good faith” is to be construed in its natural and ordinary meaning and in the context of the Act as a whole: Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 at 319. Accordingly, the act of lodging an application under s 35, taken alone, cannot be relied upon in order to establish bad faith in the negotiating process (Strickland 85 FCR at 322). If negotiations reach a standoff, notwithstanding attempts in good faith to negotiate within the relevant six-month period, there are no further obligations after the completion of the six-month period on a party which wishes to lodge a notice under s 35 of the Act. There is no need, for example, to give further warning of the intention to do so.
Although negotiations are not required to have reached any particular stage before a future act determination is sought, ‘it is not sufficient for good faith negotiations to merely “go through the motions” with a closed mind or a rigid or predetermined position’ (at [24]). The Full Court highlighted that the requirement for good faith in negotiations is directed towards ‘the quality of a party’s conduct’. Drawing on previous Federal Court and Tribunal decisions, the Full Court stated:
It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in negotiations. (at [20])
Accordingly, it is important to ascertain whether negotiations have not advanced due to one of the parties engaging in misleading conduct or a stalling process so that by the time the six month period has elapsed there was never any real intention to reach agreement. In White Mining (NSW) Pty Ltd v Franks ((2011) 257 FLR 205 at [33]) Deputy President Sosso observed:
... it is central to a good faith assessment to have regard to a negotiation party’s state of mind as manifested by its conduct. A party will fail to negotiate in good faith if it proposes a course of action which could be characterised as stalling, and then seeking arbitration after six months when the other party or parties reasonably would have expected that negotiations be on-going. In short, while good faith is not evaluated on the basis of the “status”, “stage” or “substance” of negotiations, it is evaluated on how negotiations are conducted. Consequently, if a party has deliberately taken advantage of another party’s understandable misapprehension that the negotiations would lead to an accord and delays in putting offers on the table or engaging in substantive negotiations to “buy time” so that the six months would elapse and arbitration could be sought, then the Tribunal will find that there have not been good faith negotiations.
The Full Federal Court also held in Cox (at [38]):
The Act does not dictate the content and manner of negotiations by compelling parties to negotiate in a particular way or over specified matters. Providing what was discussed and proposed was conducted in good faith and was with a view to obtaining agreement about the doing of the future act, the requirements of s 31(1)(b) will be satisfied.
A useful and succinct statement of what constitutes negotiating in good faith was provided by Member (later Deputy President) Sumner in Placer (Granny Smith) v Western Australia (1999) 163 FLR 87 (‘Placer (Granny Smith)’) at [30]:
Negotiation involves ‘communicating, having discussions or conferring with a view to reaching an agreement’: Western Australia v Taylor (1996) 134 FLR 211 at 219. Good faith requires the Government party to act with subjective honesty of intention and sincerity but this, on its own, is not sufficient. An objective standard also applies. The Government and grantee parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. The Tribunal must look at the conduct of the Government party as a whole but may have regard to certain indicia which were outlined in Western Australia v Taylor 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 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 parties have fulfilled their obligation and may impose a lesser standard on them.
It should be noted that the references to the Government party in that passage should be read (following the commencement of the 1998 amendments to the Act, including to s. 31(1)(b)), as applying to all negotiation parties.
Subsection 36(2) of the Act is also significant to these proceedings. As noted earlier, it provides that the Tribunal must not make a determination on the application if any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in s. 31(1)(b). The Tribunal has held that the practical effect of s. 36(2) is to place an evidential burden on the party alleging that another party did not negotiate in good faith which would normally require it to produce evidence to support its contentions (see e.g. Placer (Granny Smith) at [28]; Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52 (‘Gulliver Productions’) at [10]).
The passage from Placer (Granny Smith) just quoted referred to the good faith negotiating indicia which were outlined in Western Australia v Taylor (1996) 134 FLR 211 at 224-5, often referred to as the Njamal indicia. These indicia were set out in full in the judgment of RD Nicholson J in Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 (‘Strickland’) at 312–313 with apparent approval. The indicia of failing to negotiate in good faith are as follows:
(i) unreasonable delay in initiating communications in the first instance
(ii) failure to make proposals in the first place
(iii)the unexplained failure to communicate with the other parties within a reasonable time
(iv) failure to contact one or more of the other parties
(v) failure to follow up a lack of response from the other parties
(vi)failure to attempt to organise a meeting between the native title and grantee parties
(vii)failure to take reasonable steps to facilitate and engage in discussions between the parties
(viii)failing to respond to reasonable requests for relevant information within a reasonable time
(ix)stalling negotiations by unexplained delays in responding to correspondence or telephone calls
(x) unnecessary postponement of meetings
(xi) sending negotiators without authority to do more than argue or listen
(xii)refusing to agree on trivial matters, for example a refusal to incorporate statutory provisions into an agreement
(xiii) shifting position just as agreement seems in sight
(xiv) adopting a rigid non-negotiable position
(xv) failure to make counter-proposals
(xvi)unilateral conduct which harms the negotiating process, for example, using inappropriate press releases
(xvii) refusal to sign a written agreement in respect of the negotiation process or otherwise
(xviii) failure to do what a reasonable person would do in the circumstances.
It is important to note that these are indicia only. They provide a guide to assist the Tribunal when evaluating evidence about the negotiations. When assessing whether a party has negotiated in good faith, the Tribunal will consider all of the material before it and not make a decision mechanistically on the basis that a party has not met all of the indicia or even most of them. The correct approach was summed up by Member Lane in Western Australia v Dimer (2000) 163 FLR 426 (at [85]) as follows:
In determining whether parties have negotiated in good faith, the criteria developed in Njamal will be relevant. But these criteria do not constitute a checklist or series of conditions. It is not necessary that parties engage in all of the activities described there in order to negotiate in good faith. Likewise, the failure to do one or more of the things described in the criteria will not require the Tribunal to find that the parties have not negotiated in good faith.
When determining whether the parties have negotiated in good faith, a contextual evaluation is required. The approach taken by one party is normally influenced by the approach taken by, or the conduct and actions of, another. The obligation to negotiate in good faith applies to all parties, so the Tribunal will not ignore the relevant actions of others when assessing the negotiation conduct of the party being challenged. For example, as the passage in Placer (Granny Smith) quoted above indicates, lack of good faith in the negotiations by a native title party will be relevant to whether other parties have fulfilled their obligation and may impose a lesser standard on them. Similarly, if a grantee party is a small miner with few resources and limited capacity to make offers or give concessions in relation to a small project, what would be regarded as negotiating in good faith could be different from that of a large mining company with the capacity to make substantial offers and concessions in relation to a large project (see Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276 (‘Drake Coal’) at [85]).
Importantly for dealing with some of the contentions made in these proceedings, s. 31(2) provides that if any of the negotiation parties refuses or fails to negotiate about matters unrelated to the effect of the future act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of s. 31(1)(b). The operation of s. 31(2) is discussed later in these reasons (see [209] to [219] and [329] to [332].
In summary, when considering the contentions of the native title parties in respect of the Government party and the Grantee party the Tribunal needs to bear in mind:
(a)the obligation on the negotiation parties to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the grant of the proposed tenement or the grant subject to conditions to be complied with by any of the parties (s. 31(1)(b))
(b)that if any of the negotiation parties refuses or fails to negotiate as mentioned in s. 31(1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of s. 31(1)(b) (s. 31(2))
(c)the need to consider the behaviour of each party as a whole and in context (e.g. by reference to the approach taken by, and the conduct and actions of, one or more of the other parties), to assess the party’s state of mind as manifested by its conduct in negotiations, and to assess the quality of the party’s conduct by reference to what it has done or failed to do
(d)that the Act does not require the Tribunal to evaluate the reasonableness of each proposal or counter-proposal or that negotiations have reached any particular stage
(e)that it is for the negotiation party that asserts that another negotiation party did not negotiate in good faith as mentioned in s. 31(1)(b) to satisfy the Tribunal of that.
Summary of contentions of the First native title party
The statement of contentions by the First native title party quotes the Njamal indicia for negotiating in good faith; yet it does not provide or analyse the evidence in relation to each or all of those indicia. Rather, the First native title party takes a broader approach to the good faith issue, focussing on the conduct of the Government party and the Grantee party in negotiation meetings and on the perceived inadequacy and unreasonableness of the Grantee party’s offer of compensation. In summary, the First native title party contends that:
(a)the Karingbal People deserve open and transparent negotiations
(b)the social impacts of changes in land use, the alienation of property and the loss of connection with the land (including the impacts and stresses associated with relocations) will have significant impact upon the Karingbal People as the traditional owners of the country
(c)the Government party has not fulfilled its obligation under s. 31(1) to negotiate in good faith as it failed to negotiate at all with the Karingbal People
(d)the Grantee party has not fulfilled its obligation under s. 31(1) to negotiate in good faith as its offer of compensation was ‘reprehensible in that it does not respond prudently to any of the impacts that the mining lease will cause’, and the negotiations ‘failed to opine the effects upon Native Title with the value of the country in relation to the significance and profitability of the project’.
As indicated earlier, it is appropriate to deal separately with the good faith issue in relation to the Government party and the First native title party, and with the good faith issue in relation to the Grantee party and the First native title party.
The Government party and the First native title party
In its statement of contentions lodged on 13 April 2012, the First native title party contended that Government party did not negotiate in good faith, indeed that it ‘failed to negotiate at all with the Karingbal People’. In essence, the First native title party contends that the Government party attended only one meeting with the First native title party (on 4 and 5 October 2011) and that the Government party was asked by the Karingbal people if ‘it would be making an offer, and responded that it would not be making an offer and was merely there to assist and facilitate’. The submissions of the parties and the evidence will be considered by reference to:
(a)the alleged failure of the Government party to make an offer
(b)the alleged failure of the Government party to negotiate with the First native title party
(c)the implications of the Government party’s dealings with persons other than the First native title party.
Before considering those contentions it is appropriate to say something about the minutes of the negotiation meetings on 4 and 5 October 2011 and about the role of a Government party in right to negotiate negotiations such as these.
Minutes of negotiation meetings: In support of its contentions, the First native title party relies on minutes of the meeting held on 4 and 5 October 2011. The following observations about the minutes are based on two versions of the minutes, separate affidavits of Camille Kirby and Julieanne Butteriss annexed to the Government party’s statement of contentions, and submissions from the Grantee party together with an affidavit of Ben Zillmann, a lawyer representing the Grantee party.
In summary:
(a)the minutes were prepared by Ms Kirby, who is employed by the Government party as a Principal Project Officer with the Department of Natural Resources and Mines
(b)they were prepared in response to a motion at the meeting on 4 October 2011 for formal minutes to be kept
(c)they are based on notes taken by Ms Kirby, and are not a verbatim record of the meeting
(d)Ms Kirby stated at the meeting on 4 October 2011 that, rather than be the ‘go between person’ regarding changes and objections to the minutes, she would send them to Xstrata and Karingbal who would liaise between themselves about changes, which would then be sent to the State as a final version; and all parties concurred
(e)on 20 October 2011 the minutes were sent to all parties to the meeting for comment
(f)the minutes state that they were taken by the relevant Government department for its use and that department ‘does not warrant, guarantee or make any representations regarding the correctness, accuracy or completeness of this information’
(g)on 2 November 2011 Simon Cobb, a lawyer for the Grantee party who was present at the meeting, forwarded amendments to the minutes to representatives of the Government party (Ms Kirby and Ms Butteriss) as well as to the representative of the First native title party (Bill Redmond) and to Mr Lavery, all of whom were present at the meeting
(h)no response to these amendments was received by Mr Zillmann, Mr Cobb or the Grantee party
(i)in Ms Kirby’s opinion, all those changes to the minutes remain an accurate record of what occurred
(j)to Ms Kirby’s knowledge, the Karingbal People made no changes to the minutes
(k)Ms Butteriss considered that Ms Kirby’s original minutes appeared to be an accurate version of the meeting as it occurred, and Mr Cobb’s amendments also appeared to be an accurate version of the meeting as it occurred
(l)the First native title party has used the original minutes as part of its submission
(m)the First native title party did not take issue with the minutes as amended, and
(n)the Government party and the Grantee party relied on the minutes as amended in support of their contentions.
Two practical issues arise in relation to the minutes. First, the original version is Attachment 3 to the statement of contentions by the First native title party and so is subject to directions under s. 155 of the Act (referred to at [34] above) that, in short, the contents of Attachment 3 are not to be disclosed by any party to the Second native title party. The amended version, which is Annexure BJZM-1 to the ‘Minutes’ affidavit of Mr Zillmann dated 1 May 2012, was not provided to the Second native title party in any form. As noted earlier in these reasons, I intend to refer to the aspects of the restricted material that are relevant to my decision as to whether the parties have negotiated in good faith, and, where appropriate, will quote or closely paraphrase passages from the restricted material.
Second, there are two versions of the minutes in evidence before the Tribunal: the original version prepared by Ms Kirby and provided and relied on by the First native title party, and the amended version provided and relied on by the Grantee party. The First native title party has not disputed the amended and expanded version of the minutes provided by the Grantee party. Both Ms Butteriss and Ms Kirby deposed that, in their respective opinions, the amendments provided by Mr Cobb appeared to be an accurate record of what occurred.
Accordingly, I have had regard to both versions of the minutes. For the most part, the original version is sufficient evidence for the purpose of these proceedings. However, to the extent that the expanded version contains material which is different (e.g. by way of correcting an error) or additional but relevant to the resolution of the good faith issue, I have relied on it.
Because the minutes are more directly relevant to the Tribunal’s consideration of whether the Grantee party negotiated in good faith with the First native title party, they are considered in more detail when dealing with that issue later in these reasons.
Role of a government party: The contentions of the First native title party require that attention be given to the practical operation of the statutory obligation on the Government party to negotiate in good faith.
As originally enacted, s. 31(1)(b) provided that only the Government party must ‘negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties’ to the doing of the act, with or without conditions to be complied with by any of the parties.
In 1998, s. 31(1)(b) was amended to provide that ‘the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to’ the doing of the act, with or without conditions to be complied with by any of the parties. The Explanatory Memorandum to the Native Title Amendment Bill 1997 throws no light on the reasons for the amendment. It simply states that ‘the requirement to negotiate in good faith is clarified to make it clear that it applies to all parties’ (at paragraph 18.16) and that the Bill ‘extends this requirement to all parties’ (paragraph 20.31).
In the absence of any express language in the Act and any guidance from the Explanatory Memorandum to the contrary, it appears that the nature of the obligation on the Government party did not change in 1998. Rather, the obligation remained vis-a-vis the Government party, and the other negotiation parties became subject to the same obligation. Accordingly, Tribunal and judicial statements about the Government party’s obligation before the amendment in 1998 remain relevant to the application of the current obligation.
However, what can be expected of each party can be influenced by the nature of the future act and the procedures followed in relation to that act. So, for example, how and when a Government party will be involved in negotiations and what it will contribute to the substantive negotiations might vary depending on whether the future act is the grant of a mining lease for a large scale project which will benefit the grantee party, or it is the compulsory acquisition by a State of native title rights and interests to confer rights and interests in relation to the area on a third party. The stages of negotiations in which a Government party is involved and its role in those negotiations will be different in those jurisdictions where a ‘dual deed’ system is followed (as discussed later in these reasons) from jurisdictions where there is no such system. Also, as noted earlier, the approach taken by one party is normally influenced by the approach taken by, or the conduct and actions of, another party.
Alleged failure of Government party to make an offer
The First native title party contends that the Government party attended the negotiation meeting on 4 and 5 October 2011 and, when asked by the Karingbal People ‘if it would be making an offer’, the Government party ‘responded that it would not be making an offer and was merely there to assist and facilitate’. In the First native title party’s submission, this is ‘not negotiating in good faith’.
The Governments party’s statement of contentions provides two responses to this submission:
(a)the Government party complied with its obligation under s. 31(1)(a) of the Act by writing to the First native title party inviting it to make submissions to the Government party in relation to the proposed future act, and
(b)it is not the State’s practice to make offers of compensation because the applicant for a mining tenement is liable to pay any compensation.
Compliance with s. 31(1)(a) of the Act: The Government party wrote to the First native title party on 9 February 2011. The letter was addressed to the Karingbal People c/- Queensland South Native Title Services (‘QSNTS’) and was headed ‘NOTICE OF PROPOSED GRANT OF MINING LEASE ML70415’. It stated that, in accordance with s. 29 of the Act, ‘notice of the proposed grant of Mining Lease ML70415 is hereby given to the registered native title claimants of the Karingbal People’. Enclosed was the Notice of Proposed Grant of Mining Lease which, the letter advised, would be advertised in the Koori Mail and the Central Queensland News on 9 March 2011. The notification day was 30 March 2011. The letter continued:
Under section 31 of the Native Title Act 1993 (Cth) native title parties are entitled to the opportunity to make submissions to the State of Queensland, in writing or orally, regarding the proposed grant of the Mining Lease. Further information may be obtained from the Principal Project Officer Senior State Negotiator, Native Title, Central Region, Level 5, 34 East Street, Rockhampton Qld 4700, Telephone (07) ....
Should you have any queries regarding this letter or the right to negotiate, do not hesitate to contact Ms Julieanne Butteriss.
The letter was signed by Ms Butteriss, who held the position described in the first quoted paragraph.
At the time the letter was sent to QSNTS the State understood that, as well as being the representative Aboriginal body for the region, QSNTS was the solicitor on the record for the First native title party. In order to comply with its obligations under the Act, the letter was sent to QSNTS. In connection with these proceedings, the Government party obtained advice from QSNTS that:
(a)around the time of the letter, QSNTS was still representing the First native title party in future act matters, but only in expedited procedure matters
(b)the letter was received by QSNTS on 11 February 2011, and
(c)copies of the letter were forwarded to Mark Albury, Marlene Leisha, Sharleen Leisha, Carol McLeod and Charles Stapleton (i.e., the persons who comprise the First native title party) on 18 February 2011.
No submissions were received in response to that letter, either orally or in writing, from the First native title party or any representative of it.
On 30 June 2011, the Government party wrote again to the First native title party c/- QSNTS in relation to Mining Lease 70415. The letter stated that the Notice of Proposed Grant of Mining Lease was advertised in the Koori Mail and the Central Queensland News on 9 March 2011. The notification day was 30 March 2011. The letter described the three month notification process and noted that only those native title claims which are registered at the end of the notification period are entitled to negotiate an agreement. The letter continued:
The National Native Title Tribunal (NNTT) identifies that Mining Lease 70415 falls within the Karingbal People Registered Native Title Claim.
The NTA also outlines that all parties involved in the negotiation process are required to consult and negotiate in good faith with a view to obtaining a successful agreement. This includes not only the applicant for the mining lease, but also the registered native title parties and the State. The State cannot grant a mining lease until this agreement has been finalised by all parties.
The NNTT identifies ‘negotiate in good faith’ as ‘something that should be approached in a responsible and serious manner and that negotiation parties should enter into negotiations with an open mind and genuine desire to reach agreement’.
If the negotiation parties cannot reach an agreement through negotiation, an application may be made to the NNTT seeking a Future Act Determination. This process provides for a determined outcome with possible conditions which contractually bind the negotiation parties.
As this application is now out of the notification period, the parties are now required to negotiate in good faith with a view to reaching an agreement. In order for negotiations to commence, if you could please consider your availability over the next four weeks and make contact with Ms Julieanne Butteriss on [telephone number provided]. (emphasis added)
At the time the letter was sent to QSNTS the State understood that, as well as being the representative Aboriginal body for the region QSNTS was the solicitor on the record for the First native title party. In connection with these proceedings, the Government party obtained advice from QSNTS that:
(a)QSNTS ceased to act for the Karingbal on 16 June 2011
(b)the letter was received by QSNTS on 5 July 2011
(c)copies of the letter were forwarded to Mark Albury, Marlene Leisha, Sharleen Leisha, Carol McLeod and Charles Stapleton (i.e., the persons who comprise the First native title party) as well as Steven Freeman, Bill Redmond (representative) and Robert Powrie (representative) on 19 July 2011
Although the letter of 9 February 2011 apparently did not go to the legal representatives of the First native title party (because there was no legal representative for these purposes), the later letter was sent to their lawyers. Thus there was a direct invitation soon after the end of the notification period for the First native title party to engage with the Government party in negotiations about the grant of the proposed tenement. Had it done so, the First native title party could have asked whether the Government party would be making an offer in order to secure the First native title party’s agreement to the grant of the proposed tenement, or could have put a proposal to the Government party.
According to the Government party and the Grantee party, the First native title party did not propose at any stage during the negotiations that the Government party pay compensation. Indeed, not only did the Government party not receive a submission from the First native title party in response to its invitation to make one in relation to the grant of the proposed tenement, the Government party received no communication from the legal representative of the First native title party other than at the meeting on 4 and 5 October 2011, the mediation in the Tribunal, and the contentions in this matter. Nor was it asked by those lawyers to take a greater role in the negotiations.
In Gulliver Productions, the Tribunal considered a case where the native title party did not make a request for compensation from the Government party, and compensation was at all times a matter negotiated between the native title party and the grantee party. As Deputy President Sumner stated:
Negotiations do not occur in a vacuum, they must be about proposals. An opportunity is provided for a native title party to make submissions about the doing of the act (s 31(1)(a)) which is an opportunity for it to put forward proposals for negotiation. If a native title party makes no proposals on an issue to the Government or grantee parties it is difficult to see how after the event the other parties can be accused of not negotiating in good faith in relation to them. (at [49])
I agree with those observations and adopt them insofar as they apply to the Government party in this case.
State not liable to pay compensation: The Government party’s position is that the applicant for a mining tenement is liable to pay compensation, if any, to native title parties in respect of the grant of the tenement. The State will not grant a tenement under the right to negotiate process until the other parties have reached an agreement about compensation. Thus it is not the State’s practice to make offers of compensation to native title parties in relation to the grant of mining tenements.
That practice is explicable in the context of the ‘dual deed’ system for right to negotiate agreements in Queensland. It is the usual practice for native title parties and grantee parties to negotiate an Ancillary Agreement dealing with, among other things, any compensation payable to the native title party. The Government party is generally not involved in the negotiation of Ancillary Agreements and is rarely provided with copies of them as they are usually regarded by the parties as being commercial-in-confidence. Following the finalisation of such an agreement, the State will enter into a Section 31 Deed with the native title parties and grantee parties. The Section 31 Deed is a tripartite agreement between the negotiation parties which is essentially a ‘bare’ deed to comply with the requirements of s. 31(1)(b) of the Act. Hence, much of the Government party’s involvement in negotiations occurs after the other parties have finalised an Ancillary Agreement.
The Government party also submits that it has no obligation to negotiate with native title parties about compensation as part of good faith negotiations. The reason for so contending is that a native title party has no legal right to claim compensation from a Government party, and the State of Queensland has transferred to the Grantee party the responsibility to pay compensation in respect of the grant of a mining tenement.
The Government party refers to Tribunal determinations to the effect that, in Western Australia, a native title party has no legal right to claim compensation from a Government party for the grant of petroleum tenements or mining tenements in that State, and hence there is no obligation for the Government party to negotiate about compensation as part of its negotiations in good faith (Gulliver Productions at [38]-[48]; The Griffin Coal Mining Co Pty Ltd v Nyungar People (2005) 196 FLR 319 at [37]-[38]).
The Government party submits that this also applies in Queensland because:
(a)Part 2, Division 3, Subdivision M of the Act deals with future acts which pass the freehold test, and Part 2, Division 3, Subdivision P deals with the right to negotiate. Section 26(1)(a) states that the right to negotiate provisions apply to certain future acts covered by Subdivision M, including the grant of mining and petroleum tenements.
(b)Section 24MD sets out how future acts that pass the freehold test are to be treated, and specifies that if this section applies, the future acts are valid, if there is compliance with the right to negotiate provisions in Subdivision P.
(c)The freehold test applies to the grant of mining tenements as they are future acts which could be done in relation to the relevant land if the native title holders instead held ordinary title (s. 24MB(1)). Ordinary title includes freehold title (s. 253).
(d)Subsection 24MD(3) deals with future acts which pass the freehold test and do not involve compulsory acquisition of native title rights and interests (see s. 24MD(2) and (2A)). Mining leases fall within this category and as a result, the non-extinguishment principle applies.
(e)The similar compensable interest test in s. 240 of the Act is satisfied, as compensation is payable for the grant of a mining lease to holders of ordinary (freehold) title over the land.
The Government party also refers to s. 24MD(4) of the Act which prescribes who pays compensation. For present purposes the relevant paragraph provides:
(4) The native title holders may recover the compensation from:
... (b) if the act is attributable to a State or Territory:(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person: or
(ii) if not—the Crown in right of the State or Territory.
The grant of the proposed tenement is a future act attributable to the State of Queensland under the Mineral Resources Act 1989 (Qld) (‘the MRA’). Section 279 of the MRA is ‘a law of the State’ for the purposes of s. 24MD(4)(b). Subsection 279(1) of the MRA provides:
279 Compensation to be settled before grant or renewal of mining lease
(1) A mining lease shall not be granted or renewed unless—(a) compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the surface of which is the subject of the application and of any surface access to the mining lease land; or
(b) there is no person (other than the applicant) who is the owner of any of the land referred to in paragraph (a);and the conditions of the agreement or determination have been or are being complied with by the applicant ...
[100] In essence, the effect of the interaction of the scheme of the Act and the MRA is that a mining lease can be granted over the area proposed (on the basis that native title parties are treated as if they held ordinary title) and that, with the application of the similar compensable interest test, the applicant for the proposed tenement (i.e., the Grantee party and not the State) is liable to pay any compensation. As a consequence, there is no requirement that the Tribunal be satisfied that the Government party made reasonable offers to reach agreement with the First native title party about the grant of the proposed tenement (see Placer (Granny Smith) at [30]).
[101] Support for the Government party's position is given by the Grantee party which submits that 'it was well understood and accepted by all negotiation parties that any payment of compensation or other benefits to the Karingbal People would be made by the Grantee party'. It points to the minutes of the negotiation conference on 4 and 5 October 2011 and the notes of the Tribunal mediation where it is clear that the Grantee party would provide compensation and the Government party would enter a Section 31 Deed.
[102] In conclusion, the Government party wrote to the First native title party advising the First native title party of its entitlement to make submissions to the State regarding the proposed grant of the proposed tenement. The Government party also wrote to the First native title party inviting contact with the State so that negotiations could commence. No response was received to those letters. Furthermore, the way in which negotiations such as these are undertaken in Queensland and the legal context for them is clear. Accordingly, although the Government party did not make an offer, I am not satisfied that, for that reason, the Government party failed to negotiate in good faith with the First native title party.
Alleged failure of Government to negotiate with the First native title party
[103] The First native title party submits that the Government party ‘failed to negotiate at all with the Karingbal People’.
[104] The Government party responded in detail about the nature and extent of its involvement in the negotiations. First, it submits that the State has a practice of attending negotiations for right to negotiate matters only when invited to do so. It did not attend any meetings with the First native title party before 4 and 5 October 2011 because it was ‘not informed of, or invited to’ the meeting between the First native title party and the Grantee party on 13 and 14 July 2011. The Government party was not invited to attend the introductory meeting on 19 May 2011 or the field visits in August 2011. However, due to a written request on 26 July 2011 from one of the registered claimants (Charles Stapleton) to attend future negotiation meetings, the Government party contacted the Grantee party on 3 August 2011 in relation to being invited to attend the next meeting between the parties. The Government party’s representative at the negotiation meeting on 4 and 5 October 2011 agreed to take the minutes of the meeting.
[105] In addition, the Government party contends that, by negotiating directly with each other and failing to inform the Government party of negotiation meetings or invite it to such meetings, the Grantee party and the native title parties ‘indicated an unwillingness to involve the State in the initial or substantive negotiations between the parties’. Such an approach, it submits, is often consistent with the ‘dual deed’ system in Queensland.
[106] As noted earlier (at [94]), the extent of the Government party’s involvement in right to negotiate proceedings is influenced by the stage reached in negotiations between the other parties, consistently with the ‘dual deed’ system. In the present case, because no agreement was reached between the Grantee Party and either the First native title party or the Second native title party, no Section 31 Deed was signed by any party. Consequently, the Government party had a limited role in the negotiations before the commencement of the present future act determination application proceedings.
[353] As noted at [211] to [216] above, the Tribunal has considered those passages. For example, in Cox v Western Australia (2008) 219 FLR 72, Deputy President Sosso wrote (at [37]) that ‘although there is no statutory obligation for a government or grantee party to negotiate profit or royalty type payments, the failure to agree to negotiate such payments may in some circumstances be an indication of a failure to negotiate in good faith’. Having quoted paragraphs [54] and [55] from Brownley, Deputy President Sosso continued (at [38]):
The Tribunal has, in a series of good faith decisions, followed the above interpretation of the law and, accordingly, the obligation imposed on a grantee party is to receive and consider fairly, dispassionately and proportionately any proposal from a native title party for a payment of the type outlined in s. 33(1), but without an obligation to “capitulate in order to reach agreement.” – Western Australia/Western Australia Petroleum Pty Ltd & Anor/Hayes & Ors on behalf of the Thalanyji People [2001] NNTTA 18 at [37] [37] per Deputy President Sumner.
[354] The Second native title party asserts that in this case the Grantee party ‘has refused to even consider negotiating’ on the matters in s 33 of the Act and ‘have made no effort to consider the issues raised in’ s. 39. Hence, in accordance with Brownley, the Grantee party ‘has not negotiated in good faith’.
[355] Contentions based on the legal effect of ss. 33 and 39 of the Act were dealt with earlier in these reasons (at [208] to [219], and [326] to [332]). No evidence was provided in support of the present contentions that the Grantee party had not negotiated in good faith because its policy was that it would not consider issues raised in s. 33, that it had refused to even consider negotiating on the matters in s. 33, and that it made no effort to consider the issues raised in s. 39.
[356] It is sufficient to repeat the observation made earlier that, because there was no meeting between the Grantee party and the Second native title party, there was no opportunity to discuss with the Grantee party whether any of the matters set out in s. 33 or s. 39 might be taken into account in reaching an agreement about the grant of the proposed tenement. Consequently, on the basis of those contentions, I am not satisfied that the Grantee party did not negotiate in good faith with the Second native title party.
Grantee party’s alleged failure to have reasonable regard to the Bidjara People’s interests and concerns
[357] The Second native title party contends that the Grantee party has not honestly attempted to negotiate in good faith and has failed to have reasonable regard to the Bidjara People’s interests and concerns. In its submission, the Second native title party asserts that the Grantee party ‘has made very little genuine attempt to reach an accord’, and draws together contentions and assertions made elsewhere in its submissions, namely:
(a)the Grantee party failed to fund the meetings between the parties ‘in accordance with normal rates paid by other mining companies of much lesser stature’ than the Grantee party (which the Second native title party described as ‘one of the biggest mining companies in the world with billions of dollars in revenue each year’)
(b)the Grantee party ‘acted dishonestly by approaching non representative parties of the [Second native title party] and may have facilitated a criminal act, certainly created bad blood between the parties and mistrust not conducive to negotiation at all let alone in good faith’, and indeed it ‘acted in bad faith’
(c)when the opportunity came up to meet ‘to discuss the real issues and the matters of royalties on revenue’ as provided for in s. 33, the Grantee party refused to meet with the Second native title party, would not discuss the matter further and immediately referred the matter to the Tribunal, and
(d)the Grantee party would not consider the matters raised in s. 39 and its only offer was a ‘take it or leave it’ offer based on the unimproved value of the land.
[358] Furthermore, the Second native title party contends that the Grantee party has acted arbitrarily, capriciously, and unreasonably, by not considering the interests of the Bidjara people, either with respect to the payment of meeting costs, or with regard to the offer made on a ‘take it or leave it’ basis.
[359] The Second native title party offered no additional evidence in support of this submission. Rather, it referred to a passage from the Tribunal’s determination in Cox v Western Australia (2008) 219 FLR 72, at [90], highlighting the statement: ‘The Act, when referring to the right to negotiate, is envisaging negotiations which have advanced to such a stage where reasonable efforts have been made to reach an accord’.
[360] As noted earlier in these reasons (at [251] to [252]), the Tribunal’s determination was subject to a successful appeal to the Full Federal Court in Cox, where the Court rejected the conclusion reached by the Tribunal that there cannot be negotiation for the purpose of s. 31(1)(b) of the Act if the negotiations are only embryonic. The Full Court stated:
We do not agree that there is a requirement for negotiations to have reached a certain stage. The Act makes no reference to the parties reaching any particular stage in their negotiations. (at [23]).
[361] In the absence of any additional evidence in support of the four contentions set out in [357] above, and for the reasons set out earlier in relation to those issues, the Second native title party has failed to establish that the Grantee party did not negotiate in good faith.
[362] In the same vein, the Second native title party contends that the Grantee party has acted arbitrarily, capriciously, and unreasonably, by not considering the interests of the Bidjara People, either with respect to the payment of meeting costs, or with regard to the offer made on a 'take it or leave it' basis.
[363] That contention has been dealt with already and, for the reasons given, I am not satisfied that the contention has been made out by the evidence and hence, I am not satisfied that the Grantee party did not negotiate in good faith.
[364] The Second native title party also contends that the Grantee party has failed to address the development of the social, cultural and economic structures of the Bidjara people, in particular:
(a)training and apprenticeship opportunities
(b)employment opportunities
(c)local infrastructure for cultural, social and economic benefits.
[365] The Second native title party did not provide any evidence in support of it nor did it provide information to the Grantee party about those issues or how they should be taken into consideration. However, as was clear from the letter sent by the Grantee party to the Second native title party on 24 October 2011, the Grantee party was prepared to offer undertakings with regard to contract tendering for the Rolleston Mine in addition to the payment of $197,000 compensation and that these undertakings be reflected in the Ancillary Agreement (see [336] above). The undertakings would include requiring tenderers to provide details of how they would endeavour to provide employment opportunities for local indigenous groups including members of the Bidjara People while working on the Rolleston Mine Project. The Second native title party did not respond formally to that offer, so it is not possible to say whether the Grantee party might have been willing to negotiate in respect of any of the other matters listed above.
[366] Given my response to that contention, I am not satisfied that the Grantee party did not negotiate in good faith, as required by s. 31(1)(b).
Timing of the Grantee party’s application to the Tribunal
[367] The Second native title party is critical of the timing of the Grantee party’s application to the Tribunal for a future act determination (see [357](c)).
[368] As noted earlier in these reasons, the Second native title party submits that the Grantee party has used the stance of the Second native title party to require the Grantee party to pay reasonable funding costs for meetings ‘as a ploy firstly not to meet and secondly to delay and use up the negotiating period to make an application for a s. 38 determination’. The ‘unsuspecting’ Second native title party was ‘effectively duped and manipulated into a position’ where the matter could be referred to the Tribunal ‘to avoid the necessity to consider the issues’ in s. 33 of the Act. Furthermore, when the Second native title party ‘conceded and accepted’ the Grantee party’s terms to have a meeting, the Grantee party refused to meet for two reasons:
(a)because the Bidjara people had alleged that the Grantee party had aided the alleged fraud by two Bidjara people, and
(b)to avoid having to discuss the proper compensation namely a royalty on revenue pursuant to s. 33 of the Act.
[369] Given the range of these assertions, it is appropriate to look at the evidence about the circumstances leading to the future act determination application being made.
[370] The Grantee party first intimated a possible future act determination application to the Tribunal in Mr Zillmann’s letter to Ms Butteriss on 26 July 2011, in reply to her letter of 30 June 2011 in relation to the grant of the proposed tenement. Mr Zillmann referred to previous and proposed meetings with the Karingbal #2 people, and stated:
Unfortunately the Bidjara People (QUD 216/2008), whose claim overlaps the Karingbal People #2 claim area, have repeatedly refused to engage with Xstrata on the same terms as offered and agreed by the Karingbal People #2 ...
Xstrata will continue to try to meet with the Bidjara People and have informed the Karingbal People #2 that the agreement of both groups is required to avoid the need for a determination in the NNTT. We note in this respect that 6 months will have passed since the notification day on 1 October 2011.
[371] On the same day, Mr Cobb sent an email message to Mr Russell, in response to Mr Russell’s email of 19 July 2011, concerning a proposed meeting between the Grantee party and the Second native title party. He wrote:
We look forward to engaging with the Bidjara, however, if the group refuse to engage in good faith in accordance with the proposed above, Xstrata will have to consider its other options. Negotiations with the Karingbal People #2 are already advanced on this issue and Xstrata is not willing to delay indefinitely due to the current impasse with the Bidjara.
[372] The letter from the Grantee party to the Second native title party dated 24 October 2011 referred to previous correspondence regarding the right to negotiate process for the grant of the proposed tenement and the Grantee party’s ‘ongoing desire to meet with the Bidjara to discuss the grant of the mining lease’. The letter continued:
The mandatory negotiation period for the purposes of the Native Title Act 1993 concluded on 30 September 2011, however, negotiations continue with the Karingbal People #2 and the RJV remain committed to trying to reach a negotiated outcome with the native title parties to the area. However, if agreement cannot be reached within suitable timeframes, RJV will ultimately have no option but to refer the matter to the National Native Title Tribunal (NNTT) for determination.
The letter concluded by stating that RJV would wish for any meeting with the Second native title party to occur before 30 November 2011.
[373] It will be recalled that, while these communications were occurring, the Grantee party was negotiating with the First native title party and setting, then extending, deadlines for proposed agreement. In particular, when making its revised offer on 15 November 2011, the Grantee party wrote that the benefits would be paid to the Karingbal regardless of whether agreement is reached with the Bidjara People in respect of the grant of the mining lease. But the offer was conditional upon the First native title party accepting the offer and executing the necessary agreements to give effect to it on or before 23 December 2011. Having not received a response by that date, the Grantee party sent an email to Mr Lavery, copied to Mr Redmond, requesting that they obtain instructions and provide the Karingbal #2 applicant’s response to the revised offer on or before Friday 13 February 2012. The Grantee party received no response from Mr Redmond or Mr Lavery on behalf of the First native title party to the email of 23 December 2011 or the revised offer made by the Grantee party on 15 November 2011 (see [185] to [186], [190]).
[374] In his affidavit sworn on 1 May 2012, Mr Zillmann recounts his telephone conversation with Mr Russell on 23 February 2012. It appears that at that date Mr Russell considered himself to be representing the Second native title party in this matter. Mr Zillman advised him that, ‘due to the time that had elapsed, RJV was now considering referring the matter for determination’.
[375] In a letter to Ms Butteriss dated 27 February 2012, in response to her request for a ‘good faith log’ of the Grantee party’s correspondence with the Bidjara People, Mr Zillmann wrote: ‘As discussed, RJV is considering applying to the NNTT for a determination in order to facilitate the grant of MLA 70415’.
[376] In the same affidavit Mr Zillmann states that he applied for a future act determination on 8 March 2012 ‘after negotiations between the RJV, the Bidjara People and the Karingbal People #2 with respect to Mining Lease Applicaiton 70415 failed to reach an outcome’.
[377] In his letter of 9 March 2012 to Mr Hauff, Mr Zillmann wrote that his client considered that it was necessary to make a future act determination application to the Tribunal ‘given it has been approximately one year since the Bidjara were first notified of this matter and the parties have not been able to conclude an agreement’. Mr Zillmann also wrote that in their telephone conversation on 17 February 2012 he advised Mr Hauff that, as it had been almost a year since the negotiation process had commenced and no progress had been made in progressing an agreement, the Grantee party was considering referring the matter to the Tribunal ‘shortly’ for determination. That occurred on 8 March 2012, ‘on the same date your correspondence was received’.
[378] The overall import of the evidence is that the Grantee party had in mind the procedural option of making a future act determination application to the Tribunal as it attempted to negotiate agreements with both native title parties. The trigger for making the application to the Tribunal was not the expiration of six months after the notification day. Rather, it appears that the Grantee party was willing to continue to negotiate with the First native title party in an attempt to reach agreement. For as long as there was some prospect of such an agreement, the Grantee party would not make an application to the Tribunal and would also continue to attempt to set up a negotiation meeting or meetings with the Second native title party. However, nearly a year after the notification day, with no agreement with the First native title party and no meeting scheduled with the Second native title party, the Grantee party made its application.
[379] Why the application was made on 8 March 2012 was not explained, nor was it necessary for the Grantee party to do so. Mr Hauff has speculated that the timing was linked to issues raised for negotiations, and allegations made, by him on behalf of the Second native title party. No evidence was provided in support of that speculation and, in any case, the outcome of this aspect of the proceedings does not turn on it.
[380] It is clear that the making of a future act determination application to the Tribunal is not, in itself, evidence of lack of good faith on the part of the negotiation party (or parties) making the application. In Strickland, RD Nicholson J wrote that the statutory entitlement to lodge a future act determination application is:
the reason why the obligation in s 31(1)(b) to negotiate in good faith cannot be interpreted as an obligation to continue negotiations until some particular point in the negotiations has been reached. The statutory right to lodge the future act application has the consequence the act of lodgement cannot be relied upon to establish bad faith in the negotiating process. ((1998) 85 FCR 303 at 322)
[381] As Deputy President Sumner wrote in Austmin Platinum Mines Pty Ltd v Western Australia:
If a grantee party makes a s 35 application which is premature because the required negotiations in good faith have not occurred then the application will be dismissed. The fact of making the application cannot in itself be evidence of a failure to negotiate in good faith.’ ((2010) 258 FLR 216 at [46])
[382] To that can be added the statement by the Full Federal Court in Cox that:
the act of lodging an application under s 35, taken alone, cannot be relied upon in order to establish bad faith in the negotiating process (Strickland 85 FCR at 322). If negotiations reach a standoff, notwithstanding attempts in good faith to negotiate within the relevant six-month period, there are no further obligations after the completion of the six-month period on a party which wishes to lodge a notice under s 35 of the Act. There is no need, for example, to give further warning of the intention to do so. (at [19])
[383] In this case, the six month period had passed long before the future act determination application was made to the Tribunal. The negotiations between the Grantee party and the First native title party had not resulted in the agreement of the First native title party to the grant of the proposed tenement. By that stage, there appeared to be no prospect that the Grantee party and the Second native title party would meet for substantive negotiations. The negotiations had reached a standoff (if only over the question of payments for attendance at meetings). The Grantee party was at liberty to make the application to the Tribunal and was under no obligation to warn the Second native title party of its intention to do so. Accordingly, I am not satisfied that the making of the application or the timing of that application is evidence that the Grantee party was not negotiating in good faith with the Second native title party as required by s. 31(1)(b).
Behaviour of the Second native title party
[384] The Grantee party submits both that the Second native title party has not produced evidence to satisfy the Tribunal that the Grantee party has not negotiated in good faith, and that the evidence points to a lack of good faith in negotiations by the Second native title party. In particular the Grantee party submits that, in considering whether it has negotiated in good faith, the Tribunal should consider this in the context of the actions and conduct of the Second native title party (see Drake Coal at [85]). In support of its submission, the Grantee party refers to the Second native title party’s position in refusing to meet unless the Grantee party satisfied the Second native title party’s meeting fee demands, the Second native title party’s failure to respond meaningfully to the offer made by the Grantee party on 24 October 2011 and its delay in proving any response of substance to that offer, the Second native title party’s failure to make a substantive offer or to explain or justify why compensation should be calculated at a different amount or on a different basis, and the conduct of the Second native title in relation to allegations described earlier as the bad faith issue.
[385] Given the conclusions already reached in relation to each of the contentions made by the Second native title party about the Grantee party, it is not necessary to make findings or draw conclusions in relation to those matters.
Conclusion
[386] For the reasons set out above I am not satisfied that:
(a)the Government party did not negotiate in good faith with the First native title party
(b)the Grantee party did not negotiate in good faith with the First Native title party
(c)the Government party did not negotiate in good faith with the Second native title party
(d)the Grantee party did not negotiate in good faith with the Second native title party
as required by s. 31(1)(b) of the Act.
Consequently, the Tribunal has power to exercise its jurisdiction in relation to the future act determination application brought by the Grantee party on 8 March 2012.
Graeme Neate
President
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