Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland - [2012] NNTTA 55

NATIONAL NATIVE TITLE TRIBUNAL

Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 55 (30 May 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 SHOULD CONDUCT A HEARING IN RELATION TO WHETHER THE GRANTEE PARTY NEGOTIATED IN GOOD FAITH

Tribunal: Graeme Neate

Place: Brisbane

Date: 30 May 2012

Hearing Date: 9 May 2012

Representatives:

First Native title party: Redmond & Redmond, Solicitors

Second Native title party: Mr Trevor Hauff, Trevor Hauff Lawyers

Grantee party: Mr Ben Zillmann, 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 – whether Grantee party and Government party have negotiated in good faith - preliminary issue – whether Tribunal should hold a hearing in relation to allegations that Grantee party demonstrated ‘bad faith’ toward second native title party – relevance of allegations to the issue to be determined by the Tribunal – whether additional evidence should be received

Legislation: Aboriginal Cultural Heritage Act 2003 (Qld)

Mineral Resources Act 1989 (Qld)
Native Title Act 1993 (Cth) – ss. 29, 31, 35, 75, 109, 123

Cases:Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, [2012] NNTTA 211
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87

Background

The present application for an oral hearing in relation to certain matters (described at paragraphs [10] to [13] below) was made in the course of dealing with a future act determination application made to the National Native Title Tribunal (‘the Tribunal’) on 8 March 2012. The background to the proceedings can be summarised briefly.
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 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-east 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 MDL 227.
The proposed tenement is wholly within the external boundaries of:
(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 (QUD216/08) (‘the Bidjara claim’) which was entered on the Register of Native Title Claims on 12 September 2008.

For the purposes 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’.

An unusual feature of this future act determination application is that it involves two native title parties, each of which has a registered native title claim over the entire area of the proposed future act. Those native title claims are the subject of proceedings in the Federal Court of Australia. A hearing in relation to those claims is scheduled to commence on 6 August 2012.
On 8 March 2012, Allens Arthur Robinson (now Allens), the legal representative of the Grantee party, lodged with 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.
Extensive written statements of contentions and evidence have been provided to the Tribunal and the parties in response to directions made by the Tribunal in relation to the issue whether the Grantee party and the Government party negotiated in good faith with each native title party as required by s. 31(1)(b) of the Act (the ‘good faith issue’).

Application for an oral hearing

On 10 May 2012, Mr Trevor Hauff on behalf of the Second native title party made an application in writing to the Tribunal on the ‘need for an oral hearing’ in relation to an allegation that the Grantee party had acted in ‘bad faith’ because it ‘aided, abetted and/or facilitated’ the commission of an alleged criminal offence (larceny and fraud) by two named Bidjara People. For present purposes, the allegation is referred to as the ‘bad faith issue’.
In the alternative, the Second native title party submitted that, if the Tribunal believes that ‘it is not worthy of an oral hearing of the matter and it should be heard only on the papers’, the Second native title party be given the opportunity to ‘take and file witness statements’ of the persons nominated in the application to be considered in relation to whether the Second native title party was correct in its view that the Grantee party ‘could not be trusted and had acted in bad faith such that negotiations in good faith did not occur, and were substantially delayed through no fault’ of the Second native title party.
The application was foreshadowed by Mr Hauff at a listing hearing convened by the Tribunal on 9 May 2012. The written application was made in compliance with Direction 6A given to the parties on that date, relevant parts of which stated:
‘6A. On or before 1:00 pm 10 May 2012 the Bidjara native title party ... is to also provide a submission setting out:
(a) the basis for any application for an oral hearing, including
(i) the precise identification of the relevant issue or issues;
(ii) what evidence it proposes to call, including the names of proposed witnesses;
(iii) an estimate of how long the evidence would take; and
(iv) where it proposes the hearing would be held, and
(b) in the alternative, the basis for any application to provide additional witness statements, including:
(i) the precise identification of the relevant issue or issues;
(ii) what evidence it proposes to call, including the number of witness statements and the names of proposed deponents; and
(iii) when the witness statements would be provided.‘

At the hearing on 9 May 2012, the representatives of the parties agreed that all other aspects of the good faith issue could be decided on the papers.

In essence, the issue raised by the application is whether the Tribunal should:

(a)conduct a hearing to be confined only to the bad faith issue, or
(b)receive witness statements from the Second native title party (and, potentially, other evidence and submissions in response from other parties) in relation to the bad faith issue, or
(c)do neither (a) nor (b), and proceed to determine whether the Grantee party negotiated in good faith with the Second native title party on the basis of the written contentions and documentary evidence already provided to the Tribunal and the parties, i.e. proceed ‘on the papers’.

Basis of application

The relevance of the bad faith issue to what the Tribunal is being asked to decide in relation to the good faith issue can be gleaned from the following passages in the Second native title party’s submission in support of the application for an oral hearing:
‘2. ...In addition particularly in reference to the issue of “bad faith” between the parties, it is the conduct of the Grantee Party(“GP”) in it’s dealing generally between the parties.
...
5. This is our submission is a major aspect of this matter, as to negotiate in good faith, requires honesty and integrity between the parties and in this situation it was totally lost as a result of the actions or perceived actions of the GP in facilitating the signing of an amendment agreement with non representative members of the SNTP [Second native title party] and then making a payment to them in circumstances where they have allegedly stolen the money from the SNTP.
6. To properly canvass these issues and provide the evidence to support them we believe it is very important to take oral evidence in a hearing with the opportunity to test the evidence with the possibility of cross examination.
7. The witnesses in the matter have been difficult to contact and difficult to obtain statement from as they might amount to admissions of guilt, without indemnity. In addition with regard to witnesses from the Grantee Part they might simply be reluctant to give any evidence without being subpoenaed.
8. In short the only way we believe the issue can be properly canvassed ,to show bad faith on behalf of the GP and an objective assessment as to whether the SNTP party was correct in it’s assumptions and it’s feeling for the GP is to test the evidence with the witnesses in person with the opportunity of being cross examined.
9. The issue is to test whether the belief by the SNTP that the GP could not be trusted and had acted in bad faith was not purely subjective and could be objectively proven.’ [Errors in original]
In accordance with Direction 6A(a), the submission:
(a) lists five named ‘witnesses concerned’ from the Second native title party ‘side’ including the two persons ‘accused of larceny and fraud’, and states that ‘witnesses concerned’ from the Grantee party side ‘would include’ four named persons, and
(b) estimates that the proposed hearing would take two days ‘at the outside’.
The submission does not suggest where any such hearing would be held, but Mr Hauff indicated at a listing hearing on 9 May 2012 that Brisbane would be appropriate.
Having regard to the Second native title party’s submissions on the need for an oral hearing read together with that party’s submissions and statement in reply to the Grantee party’s contentions, it appears that the basis of the application for an oral hearing is, in essence, that:

(a)two Bidjara people, Mr Rodney Mailman and Ms Patricia Fraser, allegedly committed fraud and larceny in the sum of $100,000
(b)the Grantee party ‘aided, abetted and/or facilitated’ the ‘alleged criminal offence’ by those two people
(c)the Grantee party’s conduct (or perceived actions) ‘put a cloud’ over negotiations between the parties, and ‘any trust and respect’ the Second native title party had with the Grantee party was lost
(d)as a consequence it was ‘difficult for the parties to negotiate honestly for a genuine outcome for the future acts’
(e)it is important to take oral evidence at a hearing: to ‘properly canvass these issues’, to ‘provide the evidence to support’ the Second native title party’s contentions, to provide an ‘opportunity to test the evidence’, and to provide an ‘objective assessment’ as to whether the Second native title party was ‘correct in it’s [sic] assumptions and it’s [sic] feeling’ for the Grantee party.

Parties’ submissions – an overview

Submissions in relation to the application for an oral hearing were received from the Government party, the Grantee party, and the Second native title party. Those submissions are considered below.
The First native title party made no submission.
The Government party contends that it does not require a hearing in this matter and consents to the Tribunal making a determination on the papers.
The Government party’s position is taken on the basis that it has ‘no knowledge of or involvement in’ the issue raised by the Second native title party as the proposed subject of a hearing. Consequently, the Government party ‘cannot make submissions as to whether or not a hearing on this issue is required’.
Were the Tribunal to hold a hearing, the Government party has indicated that its preliminary view is that it would not wish to call or cross-examine any witnesses in relation to this issue. The Government party would seek to take a ‘lesser role’ than the other parties as it ‘has no meaningful submissions to make on the issue’ and it wishes to avoid resources being ‘unnecessarily expended’ by the Government party, the Tribunal and the other parties.
In response to the alternative application (i.e., the receipt of witness statements), the Government party contends that the Tribunal ought to direct the Second native title party to provide any witness statements by a particular date to ensure that the Tribunal can make a determination on the good faith issue and, if required, on the substantive issue, as soon as practicable.
The Grantee party submits that there is no requirement for an oral hearing and that the Second native title party’s submissions show ‘no good reason’ for there to be an oral hearing.
In response to the alternative application by the Second native title party, the Grantee party submits that the Tribunal should not receive additional witness statements from the Second native title party because the Second native title party has shown ‘no good reason as to why or how those witness statements would assist the Tribunal in making a determination on the issue of good faith’.

Given the limited scope of the submission by the Government party and the absence of any submission by the First native title party, the present application falls to be decided by reference to the contentions, submissions and evidence provided by the Second native title party and by the Grantee party.

Consideration

The issue to be resolved has two aspects:

(a)Is a finding in relation to the bad faith issue relevant to the good faith issue already before the Tribunal in the context of the future act determination application?
(b)If a finding in relation to the bad faith issue is relevant to these proceedings, is it most appropriate to deal with the issue following a hearing or by reference to written witness statements and any submissions in relation to those statements, or does the Tribunal already have sufficient material for that purpose?

In order to address the first issue, it is necessary to attempt to ascertain from the material currently before the Tribunal the nature of the alleged behaviours, particularly the alleged role of the Grantee party in relation to the commission of the alleged offences by Mr Rodney Mailman and Ms Patricia Fraser.
In email communications with Mr Ben Zillmann (legal representative of the Grantee party) on 29 March 2012, subsequent to the making of the future act determination application, Mr Hauff stated that he has ‘instructions to make an application for damages etc. for an incitement by Xstrata to induce a fraud by Toddy Mailman and Patricia Fraser who have apparently absconded with the $50K each paid to them by Xstrata for a Cultural Heritage Agreement’. The statement in reply by the Second native title party to the Grantee party’s contentions, dated 9 May 2012, states that ‘actions are being taken’ against both Mr Mailman and Ms Fraser and ‘will now be taken’ against the Grantee party ‘for incitement/inducement to fraud and for an injunction to prevent further mining in the area granted by the illegal agreement’ (at paragraph 18). The same document later states at paragraph 22(e):
‘Mr Hauff has written instructions to take legal action against Xstrata Ltd and it’s directors for damages for entering and mining an area forbidden under the terms of the original Cultural Heritage Agreement, for inducing/inciting and /or abetting the commission of fraud or inducing any person to do any act which the person is lawfully entitled to abstain from doing, and for an injunction to cease and desist from mining in that area.’ (errors in original)
I make no assessment of the scope or nature of the allegations. It is sufficient to note that they are serious and that, if such proceedings are prosecuted in a court of competent jurisdiction, it will be the court that will make findings of fact in relation to the allegations and will take such action (if any) as is appropriate.
The Tribunal cannot, and is not being asked to, rule on whether the alleged offences occurred. For the purposes of the proceedings currently before the Tribunal, the submission of the Second native title party states correctly:
‘Whilst the issue of whether a fraud occurred is not relevant to these proceedings the issue is whether the actions of the GP to facilitate the alleged fraud and the manner in which they went about those negotiations put a taint on the negotiations between the parties generally to show bad faith, dishonesty and a breach of trust between the parties, such that all negotiations became difficult, and the SNTP sceptical of the motives and genuineness of the GP’ (paragraph 1(b) 4 emphasis added).

The submission also states:

‘The issue is not whether fraud occurred but the actions of the GP in negotiating with non-representatives of the SNTP when they could not get agreement with the true representatives of the SNTP and those actions of the GP which facilitated an alleged fraud by members of the SNTP and the mistrust, scepticism and resentment brought about by the actions of the GP was not conducive to “negotiations in good faith”’. (paragraph 1(b) 1, emphasis added)

Accordingly, to deal with the application for an oral hearing in relation to the bad faith issue (and the alternative application), the Tribunal should decide whether (even if some or all of the allegations were proved to be correct) the bad faith issue has any bearing on the good faith issue, namely whether the Grantee party negotiated in good faith with the Second native title party about whether the proposed tenement should be granted.
That decision can be made by reference to the evidence currently before the Tribunal, primarily letters and email communications between representatives of the Grantee party and the Second native title party. A copy of a letter dated 25 May 2011 from Mr Perry Russell to Mr Ben Zillmann, referred to in the other correspondence but not previously provided to the Tribunal, was provided by the Grantee party at the request of the Tribunal to complete the chain of correspondence. Relevant passages from the correspondence are summarised and quoted below.

(a)5 May 2011: letter from Bryan Tiedt, Group Manager Environment & Community, Xstrata Coal Queensland (‘XCQ’) to the Bidjara People native title claim group c/- Queensland South Native Title Services, which referred to the Rolleston Coal Joint Venturers (i.e. the Grantee party) having applied for three mining leases (MLAs 70415, 70416 and 70418) adjacent to the current Rolleston mine (ML 70307) and noting that the State had issued notices under s. 29 of the Act regarding the grant of the proposed tenement (being ‘the only lease where native title may not have been extinguished at law over all the mining lease area’). XCQ on behalf of the Grantee party, stated that it:

·      ‘is committed to engaging with the Bidjara People and the Karingbal People #2 in good faith negotiations regarding native title and the grant of ML 70415’
·     ‘would also like to discuss cultural heritage matters related to all 3 new mining leases with the Bidjara and Karingbal’
·     ‘is proposing initial meetings with the Bidjara and Karingbal People #2 to discuss the Mining Leases’ [sic]
·     ‘will provide the following funding per person to assist the Bidjara People applicants attend meetings to discuss native title issues regarding the grant of the Mining Leases’ [sic] – and listed amounts as attendance fees (full day and half day), accommodation and meal expenses, travel time payments, travel expenses, and carer payments
·     ‘is willing to pay reasonable legal costs of the Bidjara People applicants in relation to the negotiation of the native title agreement for the grant of the Mining Leases’ [sic] up to a specified amount with the proviso that any costs incurred above that amount ‘must be pre-approved by XCQ’
·     ‘would like to meet with the Bidjara People to discuss the native title agreement for the grant of the Mining Leases’ [sic] and proposed that the first meeting be held on 19 May 2011 in Brisbane, with the purpose of that meeting being ‘to explain the project to the Bidjara, discuss the negotiation process, discuss on the preliminary basis the possible content of an agreement in general terms, and discuss the next steps in the negotiation, including possible future meeting dates’.

(b)16 May 2011: Email at 11:31 am from Corinne Lloyd, Manager of Sandlewood Aboriginal Projects Ltd, to Bryan Tiedt attaching ‘the draft budget for the Bidjara meeting’ and asking him to ‘confirm if the budget is approved’.
(c)16 May 2011: Email at 5:47 pm from Simon Cobb (solicitor for the Grantee party) to Perry Russell (solicitor for the Bidjara People) referring to their discussion that day and to a draft budget received that day, noting that the rates ‘are significantly in excess of those proposed by Xstrata in its letter of 5 May 2011’ and stating that the ‘rates are not accepted by Xstrata’. Mr Cobb then:
·     confirmed that, as Xstrata ‘has already communicated, it is willing to meet the reasonable costs of the Bidjara applicants attending meetings regarding this projects’ [sic]
·     stated that the ‘rates proposed by Xstrata are reasonable and consistent with what Xstrata has offered, and which has been accepted by traditional owners in respect of other future act negotiations throughout the State’
·     requested that arrangements be made for the draft budget to be re-issued ‘calculated in accordance with the rates specified in the attached letter’
·     stated that, whilst Xstrata ‘is keen to commence good faith negotiations with the Bidjara, if the Bidjara are not prepared to meet based on the offered rates, the meeting on 19 May 2011 will, regrettably, not proceed’

(d)17 May 2011: Email at 8:31 am from Perry Russell to Simon Cobb in relation to the draft budget and the basis on which fees should be calculated, and stating that:
· Mr Russell’s clients ‘need to know URGENTLY if Xstrata are prepared to meet Bidjara’s costs. If they are not then it is unlikely the other back to back meeting will proceed.’
· ‘Bidjara believe the fees offered by Xstrata are unreasonable and have instructed they are not prepared to pay them.’

(e)17 May 2011: Email at 3:36 pm from Ben Zillmann to Perry Russell referring to the previous email and stating that Xstrata’s position remains:
· Xstrata will only fund people who are Bidjara applicants to attend the meeting, consistently with Xstrata’s legal obligation to negotiate with these individuals on behalf of the Bidjara People
· Xstrata’s offer regarding payments remains as per its letter of 5 May and Xstrata ‘is of the firm view these rates are reasonable’.

He stated that, as previously advised, the rates Xstrata has offered ‘are considered fair’ and ‘go beyond Xstrata’s legal obligations, and are consistent with what Xstrata has agreed with other groups. Just as importantly, Xstrata is not just dealing with Bidjara in respect of this project – the Karingbal also have equal legal standing and Xstrata is conscious to treat both parties equally and offer them the same opportunities and terms for negotiations.’
(f)17 May 2011: Email at 3:51 pm from Perry Russell to Ben Zillmann advising that, having not received a response to his previous email until 3:36 pm, ‘we have had to cancel the back to back meeting’. He continued ‘Our clients do not agree to your fee proposal, if [sic] fails to take account of the distances needed to be travelled or the costs sought by our clients which are our clients usual fees paid by other mining companies. On this basis there will be no meeting with your client on Thursday.’ (emphasis added)
(g)17 May 2011: Email at 4:48 pm from Ben Zillmann to Perry Russell noting Mr Russell’s advice that the Bidjara would not be attending on Thursday and responding to other matters about timing, particularly noting previous exchanges of correspondence about budget options and stating that on 16 May 2011 Xstrata was first ‘made aware that the Bidjara did not accept the terms of the proposed meeting’.
(h)25 May 2011: letter from Perry Russell to Ben Zillmann advising that he acts ‘on behalf of Bidjara Peoples including Rodney Mailman and Patricia Fraser’ and referring to a letter from Mr Bryan Tiedt addressed to ‘selective representatives of the Kara Kara, Garingbal and Bidjara Peoples’. He expressed concern that Xstrata attended a meeting with his client ‘without affording our client the opportunity to be legally represented at that meeting’. He was instructed that Xstrata had agreed to fund Mr Robert Carroll of Counsel to represent the three native title groups ‘at a signing of the purported agreement to be held tomorrow in Rockhampton.’ His clients ‘do not agree to this proposal. There are potential conflicting interests of the parties and my clients will require that they be separately represented by us in any negotiations in relation to an amendment to the Cultural Heritage Management Plan that was apparently annexed to a Cultural Heritage Management Plan Implementation Agreement dated 13 May 2003’. He continued by stating that the ‘lack of any ability to be legally represented has resulted in our clients not being provided with sufficient information to make an informed decision in relation to’ the proposal, and his clients were ‘particularly concerned with the proposal for mining activities in the “lagoonal area” in the southern part of … [the] mining lease as this is a culturally significant area to our clients’. He sought copies of specified documents and advised that Ms Fraser would be attending the meeting in Rockhampton ‘to participate in discussions only’.

1 July 2011: letter sent by email from Ben Zillmann to Perry Russell in reply to the letter of 25 May 2011. Mr Zillmann:
·     set out the history of the Cultural Heritage Management Plan Implementation Agreement (CHMPIA) as entered into by representatives of the Kara Kara People, the Garingbal People and the Bidjara #3 people – being groups that had native title claims over the area of the existing Rolleston mining lease at the time of its grant
·     stated that, although those claims no longer existed (and the area is now subject to claims by the Karingbal #2 and the Bidjara Peoples), the parties retained their status as a contractual party to the CHMPIA and that is why they have been approached to discuss possible variations to it
·     referred to a letter of 11 May (addressed to individuals representing those groups that attended a meeting on 9 May) that ‘specifically contemplates that the surviving signatories to the CHMPIA would need to sign any variation (including Patricia Fraser and Rodney Mailman)’
·     referred to a meeting on 26 May, the purpose of which was to ‘provide an opportunity for the traditional owners to review a proposed amendment agreement to the CHMP with a legal representative present to assist them’.
·     stated that ‘the current CHMP does not provide for mining in the lagoonal area’, the ‘purpose of this proposed variation is to allow mining in the lagoonal area’, Xstrata ‘funded a site visit by the traditional owners to the lagoonal area after the first meeting (which occurred in mid-March)’, that site visit was attended by Mr David Mailman, and Xstrata ‘has now funded a further site visit to the lagoonal area by Rodney Mailman and Patricia Fraser, to allow the Bidjara signatories to the CHMPIA the opportunity to inspect the site for themselves’
·     responded to the concern about apparent lack of opportunity for Mr Russell’s client to be legally represented at that meeting by asserting that Xstrata has ‘repeatedly made it clear, and indeed actively encouraged, the traditional owners to have legal representation at the meetings of the parties’ and had ‘offered to fund a lawyer to represent them’. Apparently Mr Russell’s clients and the other traditional owners ‘did not take up that offer until recently’ and at the first meeting between the parties on this matter ‘the group’s collective response to the offer of assistance with legal representation was that they did not consider they required legal representation at the early meetings as they were well placed to discuss their own cultural heritage and how it is managed.’ Xstrata has been clear that ‘it would not sign any amendment agreement with the traditional owners until they had received legal advice.’
·     advised that Xstrata ‘has agreed to fund Mr Robert Carroll to represent the traditional owner parties to the CHMPIA’ and that, at the meeting on 9 May, ‘Xstrata was advised that Robert Carroll was the choice of the traditional owners present at the meeting’. Their client had been informed that Ms Fraser and Mr Rodney Mailman ‘will accept representation by Mr Carroll. Along with the other traditional owners who are a party to the agreement, in respect of the amendments to the CHMPIA’.
·     stated that, although it is ‘open to any party to additionally or separately engage their own legal representation and we of course respect the Bidjara’s right to seek your advice on the matter … Xstrata’s offer on funding is clear – it will fund one legal representative to collectively represent the traditional owners, who have a common contractual interest under the agreement, in respect of any amendments. We require a collective position from the traditional owner parties if the agreement is to be varied.’
·     stated that this ‘is not a native title negotiation (as distinct from the negotiations for Rolleston expansion mining leases, where we acknowledge you represent the current native title claimants)’.

(j)5 July 2011: letter from Bryan Tiedt to the Bidjara People native title claim group c/- Perry Russell, Creevey Russell Lawyers, referring the previous correspondence regarding a meeting to discuss the application for ML 70415 with the Bidjara People. XCQ on behalf of the Grantee party repeated its invitation to meet with the Bidjara and proposed a full day meeting on 20 July 2011. ‘As previously advised, Xstrata will provide the funding outlined in our correspondence of 5 May 2011 to assist the Bidjara People applicants to attend the meeting and will of course meet your costs in attending to assist the Bidjara. Could you please confirm the Bidjara’s agreement to the proposed arrangements and for Sandlewood or the Bidjara to provide a budget (consistent with the rates in our correspondence of 5 May 2011) to Steve Wright of Spinifex ... so that travel and meeting facilities can be arranged.’
(k)5 July 2011: email from Perry Russell to Simon Cobb confirming that ‘our clients are prepared to meet with your clients and enter into good faith negotiations, but require the meeting to be properly funded in accordance with Bidjara’s accepted funding terms. These have been previously provided to you by our client’s service provider Sandlewood. Our clients consider your clients funding proposal is inadequate and they advise that they will not meet with your client at the rates proposed.’ He wrote that his clients ‘would be able to meet with your client on 20^th July as requested if the issue of the budget can be sorted out quickly’.
(l)12 July 2011: letter sent by email from Ben Zillman and Simon Cobb to Perry Russell referring to Mr Russell’s letter of 6 July 2011 in respect of the proposed meeting with the Bidjara People on 20 July 2011 in Brisbane to discuss the grant of ML 70415. ‘As previously advised, our clients, Xstrata Coal Queensland Pty Ltd, are of the view that they have offered funding arrangements which are fair and reasonable in the circumstances to assist the Bidjara applicants to attend these meetings and to meet your reasonable costs as their legal adviser.
Although there is no requirement for grantee parties to fund native title claim groups to attend right to negotiate meetings under the Act, their client ‘is nevertheless offering substantial funding to facilitate meetings with the Bidjara.’
‘The offered payments are consistent with those offered to, and accepted by, other native title claim groups in Queensland that Xstrata has negotiated with. In particular, they are the same as offered to, and accepted by, the Karingbal People #2, with whom our clients are holding concurrent negotiations in relation to the grant of ML 70415. It is important to our client that it acts fairly by treating all native title parties it negotiates with equally and consistently. It is not prepared to pay special or higher rates to one group.’
On behalf of their clients, they reiterated their ‘desire to engage with the Bidjara to discuss the grant of ML 70415 and restate the proposed funding arrangements as set out in their correspondence to you of 5 May 2011.’
(m)19 July 2011: email from Perry Russell to Simon Cobb stating that his clients ‘are willing to meet with your clients at a suitably convenient time however they will not accept the meeting fees offered. Your client seems to continue to maintain the position that the fees offered are what they pay other groups therefore that is what they will pay Bidjara. They fail to accept the converse being the rate proposed by Bidjara is the rate other proponents pay for meeting with Bidjara. My clients believe the fees offered are unreasonable and do not take account of the distances and disruption my clients encounter in attending meetings with proponents. They do not believe your clients are acting in good faith. My clients have tentatively arranged meetings in Brisbane on 28 & 29 July and we may be able to arrange a meeting around these times but your client will need to change it’s [sic] position on meeting fees for this to occur.’
(n)26 July 2011: email from Simon Cobb to Perry Russell advising that Xstrata ‘is unable to meet this week to discuss the grant of ML 70415, however, the weeks commencing 8 and 15 August 2011 are available for a one day meeting (either in Brisbane or Rockhampton, whichever is preferable to the Bidjara).’ He rejects ‘absolutely’ the allegation that the Grantee party is ‘not acting in good faith’. The Grantee party ‘is ready and willing to meet with the Bidjara. It has offered funding beyond its legal obligations to facilitate this. We also note that the obligation to negotiate in good faith applies to all parties.’ He stated that Xstrata:
·‘has offered to meet the actual reasonable travel expenses of each Bidjara applicant to attend the meeting provided they are referred to Xstrata in advance’
·‘will pay the travel time, attendance fees and accommodation and meal expenses referred to in our letter to you of 5 May 2011 in respect of each Bidjara applicant’
·‘agreed to meet the Bidjara’s costs in relation to legal representation for the meeting’.

‘If the group refuse to engage in good faith in accordance with the proposal 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.’
(o)26 July 2011: letter from Ben Zillmann and Simon Cobb to Julieanne Butteriss (Principal Project Officer, Senior State Negotiator – Native Title Services, Department of Employment, Economic Development and Innovation) describing meetings with the First native title party, and advising that the Bidjara People ‘have repeatedly refused to engage with Xstrata on the same terms as offered and agreed by the Karingbal People #2 (which include the reasonable travel, accommodation and meal costs and “attendance fees” and funding for their legal representative). Xstrata has proposed rates consistent with those offered and accepted by native title groups with whom Xstrata has negotiated throughout the State. The rates, in Xstrata’s opinion, are more than sufficient to ensure the applicants incur no out of pocket expenses and are in fact remunerated for attending the meetings to discuss the grant of the mining lease. Nevertheless, the Bidjara are demanding higher payments.’
(p)24 October 2011: letter sent by email from Ben Zillmann and Simon Cobb to Perry Russell referring to previous correspondence regarding the ‘ongoing desire’ of the Grantee party ‘to meet with the Bidjara to discuss the grant of’ ML 70415. They stated that, although the ‘mandatory negotiation period’ for the purposes of the Act concluded on 30 September 2011, negotiations continue with the Karingbal People #2 and the Grantee party ‘remain committed to trying to reach a negotiated outcome with the native title parties to the area.’ (emphasis added)
At a meeting ‘recently held’ with the Karingbal People #2, the Grantee party had ‘put forward an offer by way of compensation for the effect of the grant of the mining lease on native title rights and interests.’ The Grantee party ‘wishes to treat each of the Karingbal People #2 and the Bidjara People equally on this issue’ and ‘would have preferred the opportunity to discuss these issues directly with the Bidjara applicants first’. However, as a meeting ‘had not been possible to date’, the Grantee party ‘wanted to communicate the offer in writing.’ The offer was a specified sum payable in two tranches (first within 14 days of execution of the State deed or Ancillary Agreement, and the second within 14 days of the grant of ML 70415). The offer of compensation ‘is made in return for the Bidjara applicants’ consent to the grant of MLA 70415’. The reasoning as to why the Grantee party ‘considers the offer is reasonable’ is set out. These payments ‘are offered regardless of whether a referral to the NNTT for a determination is required in the event agreement cannot be reached with the Karingbal People #2 (subject of course to a condition that the Bidjara will not oppose the mining lease grant).’
Certain ‘other benefits’ by way of undertakings with regard to contract tendering for the Rolleston Mine in addition to the payment of compensation were specified.
The letter stated that the Grantee party:
·‘intends to negotiate a cultural heritage management plan with the Bidjara People for the entire area of ML 70415 and other Rolleston expansion mining lease areas’
·would welcome the Bidjara’s response to the offer
·‘will gladly arrange a meeting on the terms outlined in our original correspondence of 5 May 2011’ if the Bidjara would prefer to meet with the Grantee party ‘to discuss the offer and the project’
·‘would wish for any such meeting to occur before 30 November 2011.’

According to Mr Zillmann’s affidavit in relation to this matter sworn on 1 May 2012, he provided with the 24 October 2011 correspondence some information regarding the Rolleston Expansion project, in order to enable the Bidjara to properly consider the Grantee party’s offer. The annexure marked BJZB-10 to that affidavit includes what appears to be the text of slides in a PowerPoint presentation by XCQ about the Rolleston Expansion Project dated 19 May 2011, Brisbane. (The evidence in relation to the negotiations between the Grantee party and the first native title party indicates that those parties met on 26 May 2011, not 19 May 2011). The text includes the following:

· ‘Existing Rolleston Project situated on ML 70307
· Native title extinguished over ML 70307, so no native title agreement
· Existing CHMP for ML 70307 was entered into on 13 May 2003
· Parties to the CHMP are Kara Kara People, Garingbal People, Bidjara #3. These groups were the native title claimants over the area in 2003.
· The CHMP does not apply to the proposed expansion mining leases.’

Later it states:
· ‘The new MLAs largely surround the existing ML 70307
· XCQ is required to negotiate with the existing native title applicants that overlap in the Expansion Area, the Karingbal#2 and the Bidjara
· As part of these negotiations, XCQ wish to reach agreement over a CHMP (for all expansion mining leases) and a Native Title Agreement under the Right to Negotiate (for ML 70415)’

(q)15 November 2011: letter from Perry Russell to Ben Zillmann referring to Mr Zillmann’s letter of 24 October 2011. ‘Our clients renew their previous requests for a meeting with your clients to discuss the grant of ML 70415. You have previously been provided with our clients’ sitting fee rates by their service provider Sandlewood and our clients will sit with you at a convenient time in Brisbane. The rates previously proposed by Xstrata are not, in the view of our clients, reasonable to allow our clients to attend a meeting in Brisbane and the proposed payment rates are inconsistent with Bidjara rates paid by other proponents. We await your advice.’
(r)22 December 2011: letter from Sam Tarlinton, Environment and Community Manager, Xstrata Coal Queensland, to Bidjara People Registered Native Title Claimant (QUD216/08 and QC08/5) which referred to the Rolleston Coal Joint Venture (i.e. the Grantee party) having applied for four mining leases (MLAs 70415, 70416, 70418 and 70458) adjacent to the current Rolleston Mine (ML 70307) and notified that the Grantee party ‘intends to develop a cultural heritage management plan (CHMP) for its mining and related activities on the four mining leases within the overlapping Bidjara People (QUD216/08) and Karingbal People #2 (QUD23/06) registered native title claim areas’. Attached to the letter was a written notice addressed to Brendan Wyman, Patricia Fraser, Helen Coulahan, Sheryl Lawton, Keelan Mailman, Robert Robinson, Floyd Robinson, Randall Johnson, Robert Mailman acting on their own behalf and on behalf of the Bidjara People native title claim group describing the project of undertaking coal mining and incidental or associated activities within the areas of those MLAs ‘which are adjacent to the current Rolleston Mine’. The notice specified lots which (in whole or in part) comprise the Project Area. The addressees were advised that if they wished ‘to take part in developing the cultural heritage management plan’ they must give written notice to the Grantee party advising that they ‘wish to take part’ by 30 January 2012. The notice concluded with the statement that the Grantee party ‘may elect not to endorse the Bidjara People registered native title claimant if they are not advised in writing within the required time’.
(s)8 March 2012: letter from Trevor Hauff to Ben Zillmann advising that Trevor Hauff Lawyers act for the Bidjara People and that Creevy Russell Lawyers no longer act for the Bidjara in this matter. Mr Hauff referred to the offer made in the email from Ben Zillmann dated 24 October 2011, and to the offer referred to in a conversation between Trevor Hauff and Ben Zillmann ‘around two weeks’ before 8 March 2012. Mr Hauff reiterated the disagreement about the way in which the amount of compensation to the Second native title party should be calculated and the basis on which ‘a true bona fide negotiation should take place’ under the Act. He stated that an up front payment, royalties and jobs, contracts and training for the local Indigenous people were ‘proper issues to be considered and the real basis on which proper in good faith negotiations could be concluded and a refusal to negotiate on that basis in our view would not constitute negotiation “in good faith” by Xstrata/RJV’. (emphasis added) Among other things, Mr Hauff stated in that letter that:
·‘last week’ Xstrata/RJV entered into an agreement with Mr Rodney Mailman and Ms Patricia Fraser to pay the sum of $100,000 ‘for an ILUA’ (later corrected to ‘a Cultural Heritage Agreement’: see paragraph 14 of witness statement of Trevor Hauff dated 13 April 2012)
·‘We understand that’ Mr Rodney Mailman had spent the $50,000 ‘given to him by Xstrata’ and that Ms Patricia Fraser ‘has probably also personally spent’ the $50,000 ‘given to her.
·Mr Zillman was ‘fully aware’ that neither Mr Rodney Mailman nor Ms Patricia Fraser ‘are spokespersons for’ the Bidjara People and that Mr Ray Robinson ‘is the elder and proper person to enter into negotiations with and through the legal representatives of the Bidjara People (namely Trevor Hauff Lawyers or Creevey Russell lawyers)
·this ‘act by Xstrata/RJV was not only in bad faith but in our view an inducement/incitement to fraud’ both on the Bidjara People and Mr Rodney Mailman and Ms Patricia Fraser
·‘If Allen Arthur Robinson were a party to such duplicity and deceit, then we will immediately take action for unprofessional conduct.’
·‘If negotiations for the ILUA cannot take place in good faith with the Bidjara People ... for a proper resolution of the ILUA then we are instructed to commence proceedings for fraud and deceit against both Xstrata/RJV and the directors of both organizations.’
·‘We are prepared to continue negotiations in good faith and suggest that you contact Mr.Tevor Hauff ... to make arrangements to do so, otherwise we will commence legal action against Xstrata/RJV, and the directors of those corporations and refer the matter to the DPP. If negotiations are not continued within 7 days from the date hereof we will take the abovementioned action.’

(t)9 March 2012: letter sent by email from Ben Zillmann to Trevor Hauff, after the future act determination application had been made to the Tribunal. The letter dealt with various issues raised in a telephone conversation between them on 17 February 2012 and in Mr Hauff’s letter of 8 March 2012. It advised that, despite the matter having been referred to the Tribunal for determination, the Grantee party ‘remains open to settling this matter with the Bidjara before the matter is substantially progressed through the determination process’ and for that purpose ‘is willing to repeat its offer regarding the terms of an agreement, as set out in the 24 October 2011 letter’. Additionally, if the Bidjara wish, the Grantee party is willing to meet with Bidjara on 22 March 2012 in Brisbane and ‘will fund the Bidjara’s attendance at that meeting on the terms previously offered’ in the letter of 5 May 2011, as well as funding a legal representative to be present to represent the Bidjara People at the meeting. The Grantee party ‘requires the Bidjara to provide a budget for the meeting calculated at these rates, and identifying the individuals that would attend the meeting, so that can be agreed in advance of the meeting occurring.’
The letter also responded in detail to a number of comments made by Mr Hauff in relation to the variation of the original cultural heritage agreement in relation to ML 70307. Relevantly for present purposes it stated:
·On 1 July 2011, the Grantee party made the Second native title party (through their then lawyers Creevey Russell) ‘fully aware of the existence of the negotiations involving Mr Mailman and Ms Fraser and provided a full explanation of why those negotiations were being conducted in that manner’
·‘This was approximately three months before the agreement was concluded.’ (not last week’ as Mr Hauff had stated)
·‘no payments were made by RJV under the Agreement to any particular individual’

(u)12 April 2012: email from Ben Zillmann to Trevor Hauff advising that a ‘single payment was made to a solicitor’s trust account on behalf of all of the indigenous parties to the agreement, but our client had no control over how those funds were subsequently disbursed or applied’.

The correspondence referred to above indicates that, between the date of the notice under s. 29 of the Act and the date on which the future act determination application was made to the Tribunal, there were (or could have been) three streams of negotiations between the Grantee party and relevant Bidjara people, namely:

(a)the future act negotiations with the Second native title party
(b)negotiations about proposed amendment of the CHMPIA in relation to ML 70307
(c)negotiations in relation to cultural heritage matters for the Rolleston expansion MLAs, including the proposed tenement.

For present purposes, it is appropriate to discuss each, but in reverse order.

Negotiations in relation to cultural heritage matters for Rolleston expansion MLAs, including the proposed tenement.

Although the principal focus of the correspondence was on the native title negotiations, it is apparent from:

(a)the letter from XCQ to the Bidjara People on 5 May 2011 that the Grantee party had at least contemplated discussing ‘cultural heritage matters related to all 3 new mining leases with the Bidjara and Karingbal’
(b)the letter from Mr Zillmann and Mr Cobb to Mr Russell on 24 October 2011 that the Grantee party ‘intends to negotiate a cultural heritage management plan with the Bidjara People for the entire area of ML 70415 and the other Rolleston expansion mining lease areas’ (and enclosed with that letter was the text of a PowerPoint presentation that stated, among other things: ‘XCQ wishes to reach agreement over a CHMP (for all expansion mining leases) and a Native Title Agreement under the Right to Negotiate (for ML 70415)’)
(c)the letter from XCQ to the Bidjara People on 22 December 2011 that the Rolleston Coal Joint Venture (i.e. the Grantee party) ‘intends to develop a cultural heritage management plan (CHMP) for its mining and related activities on the four mining leases within the overlapping Bidjara People (QUD216/08) and Karingbal People #2 (QUD23/06) registered native title claim areas’. Attached to the letter was a written notice (parts of which are quoted above) inviting the addressees to ‘take part in developing’ the CHMP.

There appears to be no issue about how those negotiations were conducted. Indeed Mr Hauff sent an email to Mr Zillmann on 10 April 2012 criticising Xstrata’s actions in relation to Mr Rodney Mailman and Ms Patricia Fraser ‘in circumstances where ... Xstrata had been dealing with the proper representatives on other matters’.
Accordingly, I will proceed on the basis that any negotiations for the proposed CHMP over MLA 70415 and the other Rolleston expansion mining lease areas, whilst proceeding concurrently with the native title negotiations in relation to the proposed tenement, had no adverse affect on or negative implications for the future act negotiations.

Negotiations about proposed amendment of the CHMPIA in relation to ML 70307

The Second native title party contends that the Grantee party:
(a)   created divisions between members of the Bidjara People by approaching only two members of the Bidjara People (Mr Rodney Mailman and Ms Patricia Fraser), only one of whom (Ms Fraser) is a current applicant in the Bidjara claim, and arranging for them to be parties to a cultural heritage agreement (in relation to ML 70307), knowing they did not have authority to bind the Bidjara People
(b)   facilitated an alleged fraud by these two people against the Bidjara People in circumstances where they were paid by the Grantee party the sum of $100,000 and were paid $50,000 each
(c)   obtained and paid for the services of a barrister (Mr Robert Carroll) to represent Mr Rodney Mailman and Ms Patricia Fraser as alleged representatives of the Bidjara People (together with other native title groups) while:
·knowing that Mr Mailman and Ms Fraser no longer had the authority to represent the Bidjara People
·not informing the Bidjara People Applicant representatives who they were dealing with in regard to other cultural heritage matters as to their actions with Mr Mailman and Ms Fraser
·knowing that the Bidjara People had solicitors (Ross Finlayson & Associates) representing them
(d)   negotiating other cultural heritage agreements through the solicitors on the record representing Bidjara People (Ross Finlayson & Associates) without informing them of other arrangements being made with Mr Rodney Mailman and Ms Patricia Fraser.
As noted earlier in these reasons, the Tribunal cannot, and is not being asked, to rule on whether the alleged offences occurred. Rather, at the heart of the Second native title party’s submission is the assertion that the actions of the Grantee party in the facilitation of the alleged fraud and the manner in which they went about those negotiations ‘put a taint on the negotiations between the parties generally to show bad faith, dishonesty and a breach of trust between the parties, such that all negotiations became difficult’, and that the Second native title party ‘was sceptical of the motives and genuineness’ of the Grantee party. Or, expressed slightly differently, the ‘mistrust, scepticism and resentment brought about by the actions of the GP was not conducive to “negotiations in good faith”.’
The Grantee party submits that the allegations made by the Second native title party concerning its conduct in respect of the ML70307 cultural heritage agreement are ‘incorrect’ and ‘entirely baseless’, and are not evidence of a failure by the Grantee party to negotiate in good faith in respect of the proposed tenement. As well as denying the allegations of bad faith, the Grantee party submits that the negotiations in relation to the ML70307 cultural heritage agreement are irrelevant to the native title negotiations in relation to the proposed tenement because:

(a)the negotiations complained of involved negotiations about the amendment of an existing cultural heritage agreement that applied to ML70307 only. It had no application to the proposed tenement, and was not an agreement about native title.
(b)the cultural heritage agreement that was being amended had commenced (on 13 May 2003) before the Aboriginal Cultural Heritage Act 2003 (Qld) commenced (on 16 April 2004) and predated the existence of the current Bidjara claim (which was filed on 23 July 2008 and registered on 12 September 2008)
(c)as such, the current Bidjara registered native title claimants are not party to the cultural heritage agreement for ML 70307. Rather, various former applicants from three past native title claims (the Kara Kara People, the Garingbal People and the Bidjara #3 People) which no longer exist, were party to the agreement.
(d)that is why the Grantee party conducted negotiations with Mr Rodney Mailman and Ms Patricia Fraser, amongst others, in respect of the amendment of the ML 70307 cultural heritage agreement.

As to point (a), it is clear that ML 70307 covers an area separate from (though contiguous to) the proposed tenement. Furthermore, given that the variation to the CHMPIA concerned the Lagoonal Area, it is relevant to note that – as shown on a map of the Rolleston Expansion Project included in a PowerPoint presentation dated 19 May 2011 (part of Annexure BJZB-10 to Mr Zillmann’s affidavit dated 1 May 2012) - the Lagoonal Area is at least 6.5 kilometres as the crow flies east south east of the nearest point of that part of the proposed tenement which is the subject of the native title negotiations. Hence, in at least that geographical sense, negotiations about the amendment of an existing cultural heritage agreement that applied to ML 70307 had no application to the future act negotiations in relation to the proposed tenement.
Those facts do not lead inevitably to the conclusion contended for by the Grantee party that the ML 70307 cultural heritage negotiations were ‘completely separate to’ the grant of the proposed tenement and hence were irrelevant to the native title negotiations in relation to the proposed tenement. Even if the circumstances were precisely as summarised in the preceding paragraphs [40] and [41], that does not necessarily mean that the negotiations in relation to the ML 70307 cultural heritage agreement could not have been relevant to resolving the issue whether the Grantee party negotiated in good faith with the Second native title party in relation to the proposed tenement.
To the contrary, the Second native title party contends that, at the same time as it was supposedly attempting to negotiate with the Second native title party, the Grantee party was undertaking 'an underhand arrangement with past applicants of the Bidjara group', namely Mr Rodney Mailman and Ms Patricia Fraser, and paid them $100,000 which 'should have been paid to the Bidjara People's trust account for the benefit of all the Bidjara People' and which they fraudulently spent on themselves. The Second native title party submits that if one party behaves in a way to induce or assist a fraud against the other party, they could not expect to be able to negotiate another agreement in another matter without a resolution of the fraud allegations. Indeed, the Second native title party submits, it would be naive to suggest that there is no evidence of a failure to negotiate in good faith in respect of the proposed tenement. The Second native title party sees 'the party with whom they [are] in negotiations in a totally different light after they have been deceived by them'. Hence it submits that the ‘mistrust, scepticism and resentment brought about by the actions’ of the Grantee party in relation to those negotiations ‘was not conducive to “negotiations in good faith”’ in relation to the grant of the proposed tenement.
There is some weight in this submission. However, for three reasons, it is ultimately not persuasive.
First, the negotiations about the variation to the CHMPIA over ML 70307 were disclosed to the Second native title party in correspondence between the representatives of these parties on 25 May 2011 and 1 July 2011. The letter from Mr Zillmann to Mr Russell on 1 July 2011, summarised and quoted from above, set out the history of the CHMPIA and explained why negotiations were with the signatories to the CHMPIA (including Ms Patricia Fraser and Mr Rodney Mailman) even though their native title claims no longer existed. An outline of some features of the CHMP for ML 70307 (including that the parties to it are the Kara Kara People, Garingbal People, and Bidjara #3) was provided to Mr Russell with a letter sent by email from Mr Zillmann and Mr Cobb dated 24 October 2011.
Second, there is nothing in the evidence currently before the Tribunal to suggest that the concerns expressed so forcibly in the submissions of the Second native title party were raised with the Grantee party in writing (or otherwise) before Mr Hauff’s letter to Mr Zillmann on 8 March 2012. In other words, the bad faith issue was first identified as an obstacle to substantive negotiations in that letter. According to the Grantee party, at no point prior to 8 March 2012 had the Bidjara indicated to the Grantee party that the negotiations for a cultural heritage agreement for ML 70307 had, in some way, delayed or impeded their ability to negotiate with the Grantee Party in relation to the grant of the proposed tenement. The Second native title party has not provided any evidence to suggest that the issue was raised with the Grantee party at an earlier date.
If, as Mr Zillmann states, the agreement about the variation to the CHMPIA over ML 70307 was reached some three months after 1 July 2011, then any concerns about the circumstances leading to the execution of that agreement, and the impact of it for the future act negotiations about the proposed tenement could have been raised then.

One possible explanation for the apparent lack of protest can be inferred from the Second native title party' s submission in relation to the application for an oral hearing where, in relation to Mr Carroll's role on behalf of all the native title parties to the negotiations for the amendment of the CHMPIA for ML 70307, it states:
‘Mr. Carroll did not represent the true representatives of the SNTP, who were unaware of his existence as Mr Perry Russell had forgotten to pass on the information he had received from Mr Ben Zillman and new solicitors were now acting.’
I cannot make a finding of fact only on the basis of such an assertion in the absence of other evidence in support of it. However, if it is accurate, it suggests that the bad faith issue might not have been identified until the new solicitors (presumably Trevor Hauff Lawyers) were engaged to represent the Second native title party. That seems to have occurred around mid-February 2012 or early March 2012, although the change was only confirmed in writing by Mr Hauff in his letter to Mr Zillmann on 8 March 2012. The fact remains that there is no other material to suggest that the bad faith issue was raised earlier by the Bidjara People.
Third, although the Second native title party suggests that there is (or might be) evidence of the alleged bad faith by the Grantee party, and that such evidence might be found in one or more of the witness statements to be prepared for the proposed oral hearing, its submission in support of the hearing indicates some uncertainty as to what evidence might be adduced on this point. Indeed the correspondence and submissions in support of the present application suggest a degree of speculation by the Second native title party as to what the evidence might be and the effect it might have on the outcome of this future act determination application.
In an email to Mr Zillmann and Ms Wilson on 10 April 2012, a month before that submission, Mr Hauff wrote that, before pursuing fraud allegations against Xstrata, he needed to ‘satisfy myself as to whether fraud has actually occurred’. He continued:

‘Before I proceed on instructions I would appreciate an explanation of why Xstrata would make personal payments to Tody [sic] Mailman and Patricia Fraser of $50,000.00 each to enable them to fraudulently use the money for their own personal use in circumstances where they did not represent the Bidjara People and Xstrata had been dealing with the proper representatives on other matters. ... We would say this was a reckless act on behalf of Xstrata which resulted in a loss to the Bidjara People caused by the fraud of Toddy Mailman and Patricia Fraser aided and abetted by the reckless acts of Xstrata. I await your urgent advice.’

The submission by the Second native title party dated 10 May 2012 in support of an oral hearing states:
‘The issue is to test whether the belief by the SNTP that the GP could not be trusted and had acted in bad faith was not purely subjective and could be objectively proven.’
Such uncertainty about the case to be advanced weakens the application for a hearing in relation to whether the Grantee party negotiated in bad faith in relation to the grant of the proposed tenement. There is also the distinct possibility that the production of the proposed evidence, particularly in a hearing where cross-examination is permitted, would shift the focus away from the implications, if any, of the behavior of the Grantee party for the negotiations in relation to the grant of the proposed tenement and onto the alleged offences. That concern is informed by statements in the submission by the Second native title party on the need for an oral hearing such as:

‘6. To properly canvass these issues and provide the evidence to support them we believe it is very important to take oral evidence in a hearing with the opportunity to test the evidence with the possibility of cross examination.

The witnesses in the matter have been difficult to contact and difficult to obtain statement from as they might amount to admissions of guilt, without indemnity. In addition with regard to witnesses from the Grantee Part they might simply be reluctant to give any evidence without being subpoenaed.
In short the only way we believe the issue can be properly canvassed ,to show bad faith on behalf of the GP and an objective assessment as to whether the SNTP party was correct in it’s assumptions and it’s feeling for the GP is to test the evidence with the witnesses in person with the opportunity of being cross examined.‘
The issue is to test whether the belief by the SNTP that the GP could not be trusted and had acted in bad faith was not purely subjective and could be objectively proven.’ [Errors in original]
If proceedings against Xstrata or its directors are prosecuted in a court of competent jurisdiction, it will be the court that will make findings of fact in relation to the allegations and will take such action (if any) as is appropriate. It would be inappropriate for the future act determination proceedings before the Tribunal to be used as a means of obtaining and testing evidence not relevant to the future act proceedings.
As to points (b) to (d) in paragraph [40], the Register of Native Title Claims shows that the Bidjara #3 claim (QUD6156/98) was registered from 28 October 1997 to 17 March 2000 and from 21 September 2000 to 5 September 2008, when it was discontinued. Consequently, the Bidjara #3 claim was on the Register at 13 May 2003, the date of the CHMPIA for ML 70307. The persons named as the applicant for the Bidjara #3 claim were ‘Name Withheld for Cultural Reasons, Mr Rodney Mailman, Ms Patricia Fraser’. It can be inferred that the first named applicant was deceased and that is why the Register states ‘Name Withheld for Cultural Reasons’. Consequently, the only living persons who comprised the applicant at the relevant time were Mr Rodney Mailman and Ms Patricia Fraser.
The Second native title party contends that the Grantee party was 'rejected outright' by the 'legitimate representatives' of the Second native title party after a meeting of the parties in Rockhampton that included Mr David Mailman (described as 'a legitimate member' of the Second native title party and 'Principal Consultant for Cultural Heritage for the Bidjara People'). Apparently, Mr David Mailman wrote to Mr Bryan Tiedt on 25 May 2011:
‘At no time have I given, provided, inferred or indicated that I approve, consent or agree with the proposed amendments.
To be clear I do not agree with the proposed amendments and I do not agree with the proposed mining activities for the "Lagoonal Area”’.
The Second native title party also contends that, having received that response from Mr David Mailman, the Grantee party through Mr Steven White then ‘set about doing a deal’ with Mr Rodney Mailman and Ms Patricia Fraser that eventually resulted in a deed of variation to the original CHMPIA being signed by them which allowed the Grantee party to mine in the Lagoonal Area.
The Aboriginal Cultural Heritage Act2003 (Qld) provides for cultural heritage management plans to be entered into with an ‘Aboriginal party’ (a term defined to be, in certain circumstances, a native title party (see ss 34 and 35 of that Act)). It might be inferred from the Grantee party’s submission that, at the relevant date, the Grantee party considered that it was not only entitled to negotiate an agreement with Mr Rodney Mailman and Ms Patricia Fraser, it was obliged to attempt to do so. In that context, or in contractual terms, it was Mr Rodney Mailman and Ms Patricia Fraser whose consent was required. No other Bidjara person had that role. However, the legal validity of the deed of variation is not a matter for the Tribunal to decide.
Although there appear to be strong differences of opinion between individual Bidjara People about whether mining should occur at the Lagoonal Area, and Mr Rodney Mailman and Ms Patricia Fraser have been criticised for consenting to the variation of the CHMPIA, that is not enough to put in issue the conduct of the negotiations in relation to the grant of the proposed tenement.
Putting to one side whether there was fraud and any inducement or incitement of fraud (which is not for the Tribunal to decide), if the Grantee party was doing no more and no less than acting in compliance with the requirements of the Aboriginal Cultural Heritage Act 2003 (Qld) then the concerns of the Second native title party are with the operation of that Act rather than the conduct of the Grantee party.

The future act negotiations with the Second native title party

The third set of negotiations referred to in paragraph [34] was the future act negotiations with the Second native title party in relation to the grant of the proposed tenement. Whether those negotiations occurred and whether the parties negotiated in good faith is the subject of the future act determination application.
The correspondence summarised and quoted above indicates that the funding issue was the reason that the parties did not meet to engage in substantive future act negotiations. In summary:

(a)each party repeatedly expressed a willingness to negotiate with the other in relation to the grant of the proposed tenement
(b)the Grantee party offered to provide funding to assist the Second native title party attend meetings and to cover legal costs in the amounts and on the basis set out in its letter to the Second native title party on 5 May 2011
(c)the Second native title party considered that the amounts offered by the Grantee party were ‘unreasonable’, ‘not reasonable’, ‘inadequate’ and ‘inconsistent with Bidjara rates paid by other proponents’
(d)the Second native title party provided the Grantee party with a budget with higher amounts and would not meet with the Grantee party at the rates proposed by it
(e)the Grantee party considered the rates proposed by the Second native title party, was not willing to pay the higher rates, and repeated its offer to meet on the funding arrangements set out in its letter of 5 May 2011 on the basis that its proposed funding arrangements were fair and reasonable in the circumstances
(f)the impasse over funding arrangements continued even after a written offer for compensation and ‘other benefits’ was made by the Grantee Party on 24 October 2011
(g)a series of letters and emails between the representatives of these parties until at least 15 November 2011 indicated that the reason why the parties did not meet was the failure to agree on the funding arrangements for such a meeting.

That conclusion is confirmed in the submissions of the Second native title party regarding the Grantee party (dated 10 May 2012) where, having contended that the Grantee party ‘refused to fund the attendance of the SNTP as requested by them to attend a face to face meeting for the purposes of negotiating in good faith the proposed future act’, the Second native title party states:
‘In this matter the parties never did meet as the GP would not fund a meeting of the parties in accordance with the normal funding fees paid by other mining companies. [Contention 1(a) paragraph 6]’
Accordingly, it is open to conclude on the evidence currently before the Tribunal that that was the principal if not the sole reason why the parties had not met before 8 March 2012 to negotiate in relation to the grant of the proposed tenement.

Proposed additional evidence

If, as the Grantee party submits:

(a)by operation of s. 36(2) of the Act, the evidential onus of satisfying the Tribunal that a negotiation party did not negotiate in good faith rests on the party alleging that another party did not negotiate in good faith, in this case, the Second native title party (see Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 at 28; Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2010] NNTTA 211 at 45), and
(b)the Second native title party has produced ‘no credible evidence or argument’ in relation to the alleged ‘fraud’ by the Grantee party in respect of ML 70307,

the question is whether the Second native title party should be permitted the benefit of an oral hearing or the opportunity to provide the witness statements referred to in its application for an oral hearing.

The Second native title party contends that, if given the opportunity, it will provide the following evidence to support the proposition that the Grantee party acted in bad faith:

(a)from Mr Robert Carroll, the barrister appointed by the Grantee party to act for the Second native title party in relation to the deed of variation of the CHMPIA, who will provide evidence that he was informed by Mr Mailman (presumably Mr David Mailman) that the Second native title party did not want to expand the scope of the Cultural Heritage Agreement to allow mining of the ‘Lagoonal Area’ and informed the Grantee party of that and presumed the matter was ended. He will provide evidence of correspondence to support his affidavit. He will say that he heard later that an agreement had been entered into and was concerned that his client the Second native title party was not represented and made this known to the Grantee party’s solicitors. This evidence would be in contrast to the Grantee party’s statement that Mr Mailman and Ms Fraser were represented by Mr Carroll. Nevertheless the Grantee party continued negotiations with these parties (who did not represent the Bidjara People) and had them sign a deed of variation for the sum of $100,000 which was paid to them by a firm of solicitors in Rockhampton on the instructions of Mr Steven White, an employee of the Grantee party. The monies were then paid to Ms Patricia Fraser who shared the amount with Mr Mailman and were personally spent by them. As a result the Bidjara People were denied the opportunity of negotiating the deed of variation and any monies which might have been forthcoming, and were denied the opportunity to put in place protection of the ‘Lagoonal Area’ or rejection of mining in that area.
(b)from both Mr Mailman (presumably Mr Rodney Mailman) and Ms Fraser as to the events leading up to the payment by the Grantee party of the $100,000 to extend the mining into the ‘Lagoonal Area’ and that they were told by Mr Steven White that they could spend the money as they liked.
(c)from Mr David Mailman, a Bidjara Elder and Principal Consultant for Cultural Heritage for the Bidjara People, who wrote to Mr. Bryan Tiedt the Group Manager Environment & Community for XCQ on 25 May 2011 stating:
‘At no time have I given, provided, inferred or indicated that I approve, consent or agree with the proposed amendments’.
“To be clear I do not agree with the proposed amendments and I do not agree with the proposed mining activities for the “Lagoonal Area”’.

(d)from Mr Robert Raymond Robinson, an elder of the Bidjara people, who will confirm the facts surrounding the events leading up to the mining by the Grantee party of the ‘Lagoonal Area’ in breach of the existing Cultural Heritage Agreement and the illegality of the deed of variation entered into by the non representatives of the Bidjara People (Mr Rodney Mailman and Ms Patricia Fraser) and the bad faith created between the Second native title party and the Grantee party because of those circumstances.

As noted earlier, the Second native title party also submitted in support of its application for an oral hearing that ‘witnesses concerned’ from the Grantee party side ‘would include’ four named persons (they are Mr Simon Cobb and Mr Ben Zillmann from Allens, Mr Steven White, and Mr David Lipke, a solicitor from Swanwick Murray Roche Lawyers), (the Rockhampton firm into whose trust account the $100,000 was said to be paid).

Conclusion

In light of the circumstances and conclusions set out above, I am not satisfied that:

(a)a finding in relation to the bad faith issues is relevant to the good faith issue before the Tribunal in relation to the grant of the proposed tenement, and
(b)the taking of oral evidence in a hearing, or the production of witness statements, from some or all of those persons would assist the Tribunal to decide whether the Grantee party negotiated in good faith in relation to the grant of the proposed tenement.

Consequently, based on the submissions and evidence currently before the Tribunal, I have concluded that the application for:

(a)an oral hearing in relation to the bad faith issue, or
(b)in the alternative, the production of witness statements in relation to the bad faith issue,

should be refused.

Consequently, it is not necessary to deal with such procedural issues as the Tribunal’s power to summon a person to appear before it to give evidence and to produce documents (see s. 156(2)) and the circumstances in which the Tribunal might grant leave for the cross-examination or re-examination of witnesses (see s. 156(5)).
I will now consider the submissions and evidence currently before the Tribunal to determine whether the Grantee party and the Government party negotiated in good faith with both the First native title party and the Second native title party in relation to the grant of the proposed tenement.

Graeme Neate
President

30 May 2012