Yellow Rock Resources Ltd and Others v Shay and Others on behalf of Yugunga-Nya People

[2014] NNTTA 43

Yellow Rock Resources Ltd and Others v Shay and Others on behalf of Yugunga-Nya People [2014] NNTTA 43 (1 May 2014)

Application No:        WF2013/0020

IN THE MATTER of the Native Title Act1993 (Cth)

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

Yellow Rock Resources Ltd and Padbury Mining Ltd (grantee party)

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William Shay, Evelyn Gilla, Winifred Gentle and Rex Shay on behalf of Yugunga-Nya People (WC1999/046) (native title party)

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The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

Tribunal:  Member James McNamara
Place:  Brisbane
Date:  1 May 2014

Catchwords:  Native title – future act – whether grantee party has negotiated in good faith –grantee party has not negotiated in good faith –authority to negotiate – delay and response times – whether conduct is honest and reasonable –Tribunal does not have power to proceed with future act determination inquiry

Legislation:Acts Interpretation Act1901 (Cth), s 36

Native Title Act 1993 (Cth), ss 29, 30, 30A, 31, 35, 36, 38, 39, 77, 109, 150

Mining Act 1978 (WA), s 85

Cases:Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 30 (‘Adani Mining v Diver’)

FMG Pilbara Pty Ltd v Cox and others (2009) 175 FCR 141 (‘FMG Pilbara v Cox’)

Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52; [2005] NNTTA 88 (‘Gulliver v Western Desert Lands Aboriginal Corporation ’)

Mr Kevin Cosmos & Ors (Yaburara Mardudhunera People)/Mr Jack Alexander & Ors (Kuruma Marthudunera People)/Western Australia/Mineralogy Pty Ltd, [2009] NNTTA 35 (‘Cosmos v Mineralogy’)

Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 (‘Placer v Western Australia’)

Western Australia v Dimer (2000) 163 FLR 426 (‘Western Australia v Dimer’)

Western Australia v Taylor (1996) 134 FLR 211; [1996] NNTTA 34 (‘Western Australia v Taylor’)

White Mining (NSW) Pty Ltd v Franks (2011) 257 FLR 205; [2011] NNTTA 72 (‘White Mining v Franks’)

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

Representative of the     Mr Greg Abbott, M & M Walter Consulting
grantee party:                 

Representative of the     Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation

native title party:            

Representative of the      Ms Janice Goodwin, Department of Mines and Petroleum
Government party:

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT THE INQUIRY

1. The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant mining lease 51/771 (‘the proposed lease’) to Shell Villages and Resorts Ltd and Padbury Mining Ltd. For the purposes of s 29(4), 6 October 2010 was specified as the notification date.

2. According to DMP’s Tenement Register, the tenement applicant changed from Shell Villages and Resorts Ltd to Yellow Rock Resources Ltd on 3 December 2010 and the current tenement applicant consists of Yellow Rock Resources Ltd and Padbury Mining Ltd (‘the grantee party’).

3. Any person who, four months after the notification day, is a native title party (i.e. registered native title claimant or a body corporate according to the specified time frames in s 30(1) of the Act) in relation to any of the land or waters that will be affected by the future act, has a procedural right to negotiate in relation to the future act (see s 30(1)(a) and s 31 of the Act).

4. At the four month closing day, being 7 February 2011 (moved from 6 February to the next working day: see s 36(2) of the Acts Interpretation Act 1901 (Cth)) the native title claims of the Yugunga-Nya People (WC1999/046; WAD6132/1998) and the Wutha People (WC1999/010; WAD6064/1998) appeared on the National Native Title Tribunal’s Register of Native Title Claims.

5. The proposed lease is approximately 55 kilometres south of Meekatharra, in the Shire of Meekatharra. According to the notice, the proposed lease is approximately 299.7 hectares (2.99 square kilometres) and, if granted, the lease would authorise the holder to mine for minerals for 21 years with an option of renewal for a further 21 years.

6. The rights which would be conferred by the mining lease (if granted) are set out in s 85 of the Mining Act 1978 (WA).

7. The proposed lease is overlapped 100 per cent by the Yugunga-Nya People native title claim and 100 per cent by the Wutha native title claim.

8. The Yugunga-Nya People’s claim covers a total area of approximately 30341.18 square kilometres and the Wutha People’s claim covers a total area of approximately 32684.50 square kilometres.

9. Agreement to the grant of the mining lease was reached between the grantee party and the Wutha People and a Deed for Grant of Mining Tenement (ss 28(1)(f) and 31(1)(b)) was executed and lodged with the Tribunal on 17 July 2013.

10. The grantee party and the Yugunga-Nya (’native title party’) were unable to reach agreement. 

11. This decision is about whether the Tribunal can be satisfied the grantee party negotiated in good faith with a view to obtaining the agreement of the native title party, as required by s 31(1)(b) of the Act. If any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith, the Tribunal must not make a determination pursuant to s 38 (see s 36(2) of the Act). The implications of s 36(2) were explained by the Full Federal Court in FMG Pilbara v Cox      (at 143) 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.

12. There is no submission that the Government party had failed to negotiate in good faith.

The future act determination application

1. On 30 October 2013, a future act determination application (Form 5) was lodged with the Tribunal pursuant to s 38 of the Act by the grantee party.

2. The Form 5 stated that the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) of the Act and at least six months had passed since the notification day (see s 35 of the Act). On 30 October 2013, President Webb appointed herself as the Member to conduct the inquiry into the future act determination application. President Webb appointed me as the presiding Member for this inquiry on 10 April 2014.

3. Accompanying the Form 5 were the following:

(a)Annexure A – a map of the proposed lease, nearby tenements and topography prepared by Yellow Rock Resources Limited in January 2011;

(b)Annexure B – Submissions as to the efforts to reach agreement made by the grantee party and a search result extract generated 28 October 2013 from the Aboriginal Sites Database, showing the registered site Nowthanna Hill (Site ID 7451) within the search area for the proposed lease and a map of the area;

(c)Annexure C – Tengraph Quick Appraisal for mining lease 51/771, published by DMP and generated on 16 July 2013, showing underlying tenure, tenements affected, dead tenements affected (i.e. expired, cancelled or surrendered) and services affected;

(d)Annexure D – a map generated through the Tribunal’s online mapping system, Native Title Vision, entitled ‘Nowthanna with Mediations, Aboriginal site and nature reserve’, dated 12 July 2013;

(e)Annexure E – Search results extract from the Department of Indigenous Affairs’ (‘DIA’, now Department of Aboriginal Affairs (‘DAA’)) Survey Report Catalogue, dated 15 July 2013 and showing one survey report within the proposed lease area (report ID 17420);

(f)Annexure F – Geological Report on the Nowthanna Project (M51/771) prepared by Geologica Pty Ltd and dated July 2012;

(g)Annexure G – A copy of DMP’s mining tenement summary reports for M51/732 and M51/648  created 19 July 2013 and a map prepared by DMP showing the proposed lease and surrounding tenements;

(h)Annexure H – (unsigned) Deed for grant of mining tenement between The State of Western Australia, Wutha People, Padbury Mining Ltd and Yellow Rock Resources Ltd dated 17 July 2013.

1. President Webb sought further information from the grantee party representative, Mr Abbott, regarding a discrepancy between the tenement applicant listed on the s 29 notice and the named applicant on the Form 5. Mr Abbott provided various documents explaining the discrepancy and confirmed that the Form 5 was correct. President Webb accepted the application on 28 November 2013 pursuant to s 77 of the Act.

2. On 2 December 2013, President Webb held a preliminary conference during which she invited the parties to discuss whether any party contended or would contend a lack of good faith; whether there was any prospect of reaching agreement; and, directions to progress the matter. Arising from this preliminary conference, the parties agreed to a section 150 conference to be facilitated by a member of staff assisting the Tribunal (see s 150 of the Act), to enable the parties a further opportunity to try to reach agreement in a confidential and without prejudice forum, running separately to the future act determination application.

3. Also on 2 December 2013, after the preliminary conference, President Webb issued directions requiring the parties to submit contentions and evidence on the question of good faith (the preliminary issue) and in relation to the s 39 criteria (the substantive issue).

4. On 17 December 2013, President Webb amended the directions to extend the time frames for contentions on the good faith issue, as the parties were participating in the s 150 conference process. On 29 January 2014, the directions were further amended to extend the dates relevant to the preliminary issue.

5. Section 150 conferences were convened by a member of staff assisting the Tribunal on 9 December 2013, 16 January 2014, 12 and 26 February 2014. The parties were unable to reach agreement and that process was terminated on 26 February 2014.

Legal principles regarding good faith

1. The obligation to negotiate in good faith is set out in s 31 of the Act:

   s 31 Normal negotiation procedure

   (1)Unless the notice includes a statement that the Government party considers the 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 the view to obtaining the agreement of each of the native title parties to:

   (i)     the doing of the act; or

   (ii)    the doing of the act subject to conditions to be complied with by any of the parties.

   (2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph     (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 the paragraph.

1. The ‘negotiation parties’ are the Government party, the grantee party and the native title party (see s 30A of the Act). Where an allegation of a lack of good faith is made, it is the conduct of only the grantee party and/or the Government party which is relevant to the Tribunal’s power to make a determination under s 38 of the Act. As stated at [11] above, the Tribunal must not make a determination if any negotiation party satisfies the Tribunal that either the Government party or the grantee party did not negotiate in good faith (see s 36(2) of the Act and [11] above). If the Tribunal were so satisfied, the parties would need to recommence negotiations although it would be possible for a future act determination application to be made again in relevant circumstances.

1. Whether the native title party negotiated in good faith is not part of the consideration under s 36(2), though the native title party’s conduct can be taken into consideration when the Tribunal is assessing how reasonable the conduct of the grantee party or Government party has been in the circumstances (see Xstrata v Albury at [65] and Placer vWestern Australia at [30]).

1. Although the Tribunal is not bound by the rules of evidence (see s 109(3) of the Act), the effect of s 36(2) is to require the party alleging the lack of good faith to produce material to support the allegation. As explained in Gulliver v Western Desert Lands Aboriginal Corporation (at [10]):

   The Tribunal has said that the practical effect of s 36(2) is to place an “evidential burden” on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Dempster, Western Australia and Bayside Abalone [1999] NNTTA 235 Hon EM Franklyn QC (at 4, 21); Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 (21 December 1999) (at [21]-[28]).)

2. Good faith is not defined in the Act, though the description in Placer v Western Australia (at [30]) is informative. The references to a Government party are also applicable to a grantee party. It reads as follows:

   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.

3. The parties are not required to reach any particular stage of negotiations before applying for a future act determination application, however, it is insufficient to merely go through the motions and the quality of the conduct must be assessed (see FMGPilbara v Cox at [20] and [24]). In White Mining v Franks, Deputy President Sosso outlined key elements of the Full Federal Court’s decision in Cox and went on to explain (at [33]):

   ... 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.

4. In Western Australia v Taylor, Member Sumner (as he then was) provided a series of indicia of conduct to be taken into consideration when assessing good faith, which have been consistently referred to by the Tribunal. The indicia are commonly known as the Njamal indicia. The indicia are not to be interpreted as an exhaustive list and each item does not need to necessarily be present; they rather represent factors to consider, when the Tribunal is assessing the overall conduct in all of the circumstances (see Western Australia v Dimer at [85] and Adani Mining v Diver at [34]). With this in mind, the indicia in Western Australia v Taylor are as follows (at 224-225):

   (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 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 party and grantee parties;

   (vii)Failure to take reasonable steps to facilitate and engage in discussions between the parties;

   (viii)Failure 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, refusal to incorporate statutory provisions into an agreement;

   (xiii)Shifting position just as an 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, issuing inappropriate press releases;

   (xvii)Refusal to sign a written agreement in respect of the negotiation process or otherwise; and

   (xviii) Failure to do what a reasonable person would do in the circumstances.

Good Faith Contentions and Evidence

1. On 27 January 2014, the native title party sent to the Tribunal “Submissions in support of the Native Title Party’s contention that the grantee party has not negotiated in good faith” (‘NTP Contentions’). On 29 January 2014, minor changes were made to the material and a correcting affidavit was provided to clarify the date and tenement number. The submission consisted of:

(a)The NTP Contentions describing conduct of the grantee party which it believes fell short of negotiating in good faith; and

(b)the affidavit of Mr Colin Alec McKellar, solicitor for the native title party employed by Yamatji Marlpa Aboriginal Corporation (‘YMAC’), affirmed 27 January 2014, together with 20 annexures (CAM001 – CAM020) comprising tenement information, various email correspondence between representatives of the parties, letters, meeting notes, and the synopsis and outcomes of Tribunal-assisted mediation conferences.  The list of annexures can be found as Attachment A to this decision.

1. The native title party, in their contentions, set out the requirements of s 31, the Njamal indicia referred to above (see [27]), and the obligations and overarching principle set out by Member Lane in Western Australia v Dimer, which read as follows (at [102]-103]):

   102 If we look at those criteria in the light of the kinds of activity that might be undertaken in negotiation, they fall into a series of related, though not necessarily co-extensive obligations. Those obligations appear to me to involve the following:
   • an obligation to communicate with other parties within a reasonable time and a reciprocal obligation to respond to communication received within a reasonable time: Njamal ((i), (iii), (iv), (v), (vii), (ix));
   • an obligation to make proposals to other parties with a view to achieving agreement and a reciprocal obligation on other parties to respond either by making counter-proposals or by way of comment or suggestion about the original proposal: Njamal ((ii), (xv));
   • an expectation that a party will make inquiry of other parties if there is insufficient information available to make an informed choice about how to proceed in negotiations and an obligation on those other parties to provide relevant information within a reasonable time: Njamal ((viii)); and
   • an obligation to seek from other parties appropriate commitments to the process of negotiation or in relation to the subject matter of negotiation and a reciprocal obligation to make either appropriate commitments to process, or appropriate concessions as the case may be: Njamal ((vi), (x), (xi), (xii), (xiii), (xiv), (xvii)).

   103 The final indicium in Njamal seems to express the overarching obligation imposed by s 31 (1)(b) to act honestly and reasonably with a view to reaching an agreement on whether or not the act should go ahead.

1. The native title party submits that the grantee party failed to communicate effectively as well as to act honestly and reasonably with a view to reaching an agreement on whether or not the act should be done.  The native title party at paragraph 7 of their contentions says the grantee party’s failure to negotiate in good faith falls into four broad categories:

   (a)Delay in engaging with the native title party (Njamal Indicia vi, vii and viii);

   (b)Failure to send representatives with authority to negotiate (Njamal Indicia iii, vii, and xi);

   (c)Failure to respond to the native title party requests in relation to the negotiation  (Njamal Indicia iii, iv, vii, viii, ix, xviii);

   (d)Failure to act reasonably and honestly (Njamal Indicia xviii).

2. The native title party submits that the grantee party’s conduct met the following Njamal indicia of lack of good faith negotiations: 

   (iii) The unexplained failure to communicate with the other parties within a reasonable time;

   (iv) Failure to contact one or more of the parties;

   (vi) Failure to attempt to organise a meeting between the native title party and grantee parties;

   (vii) Failure to take reasonable steps to facilitate and engage in discussions between the parties;

   (viii) Shifting position just as an agreement seems in sight;

   (ix) Stalling negotiations by unexplained delays in responding to correspondence or telephone calls;

   (xi) Sending negotiators without authority to do more than argue or listen; and

   (xviii) Failure to do what a reasonable person would do in the circumstances.

3. The good faith of the Government party was not challenged and on 30 January 2014, a representative of the Government party wrote to the Tribunal and other parties confirming the Government party did not wish to submit any material on the good faith issue.

4. On 4 February 2014, in compliance with the further amended directions issued 29 January 2014, “Submissions in support of the Grantee Party’s contention that the grantee party has negotiated in good faith in relation to Mining Lease 51/771” (‘GP Contentions’) were received. The format of the contentions mirrors the native title party’s contentions in relation to s 31 and the principles regarding good faith. The grantee party provides specific responses to the actions claimed by the native title party to constitute a lack of good faith and responds directly to the four categories referred to by the native title party. The contentions were supported by the affidavit of Mr Leslie James Ingraham, director of Yellow Rock Resources Limited, affirmed 4 February 2014. Accompanying the affidavit were Annexures LJI-001 - LJI-024 comprising various email correspondence between the parties, a draft agreement, a PowerPoint presentation prepared for the native title party, Tribunal records of mediation and letters. The list of annexures can be found as Attachment B to this decision.

5. On 11 February 2014, the native title party submitted the following material in reply:

   (a)   a statement of contentions in reply (‘NTP Reply’) in response to the grantee party contentions and affidavit submitted on 4 February 2014; and

   (b)   an affidavit of Mr Colin Alec McKellar affirmed 10 February 2014 (‘Mr McKellar’s February affidavit’) with annexure CAM021 (included in Attachment A below).

6. On 12 February 2014, in response to the native title party’s reply material, the grantee party submitted an additional affidavit of Mr Sydney James Chesson, a director and Chairman of Yellow Rock Resources Limited, affirmed on 12 February 2014. Although the further amended directions did not provide for the grantee party’s reply material, I have decided to take it into account.  

7. President Webb sought viewpoints on whether the good faith inquiry should be decided on the papers or whether an oral hearing should take place. The grantee party and native title party indicated they were agreeable to the matter proceeding on the papers. President Webb informed parties on 7 February 2014 of her decision that the matter would proceed on the papers.

8. I have considered the material before the Tribunal and am satisfied the matter can be decided on the papers.

Background to negotiations

1. The following paragraphs are a broad and general snapshot of some key events; further and additional details are provided in the remainder of these reasons where necessary.

2. The grantee party and native title party first planned to meet on 31 March 2011, however, this meeting did not take place due to the native title party rescheduling and then cancelling due to sorry business. Yugunga-Nya working group meetings (‘working group meetings’) were held on 27 July 2011 and 8 February 2012, to which the grantee party was invited but could not attend.

3. On 31 May 2012, the grantee party’s representative, Mr Abbott, sent a ‘draft deferred productive mining agreement’ to the native title party’s representative Mr Eaton by email stating, ‘As per our previous discussions and our phone conversation this morning I attach a copy of an agreement to Yugunga-Nya to engage in negotiations in good faith’ (annexure LJI006 to Mr Ingraham’s affidavit). Over the following few months, the parties corresponded to arrange a meeting.

4. The parties did not meet until the ‘preliminary meeting’ on 27 November 2012, during which the native title party raised specific requests. The parties accounts of what exactly was requested by the native title party differs, although both accounts relate to: the native title party’s request for certain advice; the proposal for another more detailed meeting between the parties; and the need for Mr Ingraham to seek instructions from the grantee party’s Board in relation to the native title party’s request/s.

5. During the months that followed, the native title party contacted the grantee party on several occasions seeking the response of the grantee party’s Board to the requests raised during the preliminary meeting.

6. On 28 February 2013, the Government party requested the Tribunal provide mediation assistance. The Tribunal held four sessions on 23 April 2013, 2 May 2013, 19 June 2013 and 10 July 2013.

7. On 13 June 2013, Mr Ingraham sent an email to Mr Avina and Mr McKellar advising that the grantee party would be making a future act determination application. On 18 July 2013, Mr McKellar wrote to the grantee party requesting negotiations continue and inviting the grantee party to the next working group meeting. The following day, Mr McKellar, Mr Ingraham and Mr Chesson had a telephone conference, the content of which is described in Mr Chesson’s affidavit, and is generally indicative that the relationship between the representatives of the parties had become negative and personal. A working group meeting was held on 7 October 2013, to which the grantee party was not invited (see [107] below).

8. The future act determination application was lodged on 30 October 2013.

Issues regarding good faith

1. For ease of reference I will consider the issues according to the four categories used by both parties in their contentions regarding good faith. Again, for ease of reference I list here the names of people and the positions they hold with the respective parties:

   • Mr Abbott – Representative of the grantee party, Mining Titles Consultant at M & M Walter Consulting
   • Mr Ingraham – Executive Director of Yellow Rock Resources Ltd
   • Ms Plummer – Tenement Consultant at M & M Walter Consulting
   • Mr Chesson – Director of Yellow Rock Resources Ltd
   • Mr Valentine – M & M Walter Consulting
   • Mr Eaton – Lawyer at YMAC
   • Mr McKellar – Lawyer at YMAC
   • Mr Avina – Lawyer at YMAC

Delay in engaging with the native title party (Njamal indicia vi, vii, viii)

1. The native title party contends that the grantee party caused delay in engaging with them, referring to the grantee party’s non-attendance at Yugunga-Nya working group meetings held on 27 July 2011 and 8 February 2012 (at paragraph 9 of the NTP Contentions).

2. In relation to the 27 July 2011 meeting, the grantee party was invited by email on 13 July 2011.  Ms Plummer, representing the grantee party, responded by email on 21 July 2011 saying: ‘As per our telephone conversation this morning, unfortunately our clients Padbury Mining Ltd and Yellow Rock Resources Ltd will not be able to attend. Please forward through details of the proposed next meeting as soon as this has been arranged’ (Annexure CAM-003 to the affidavit of Colin Alec McKellar affirmed 27 January 2014).

3. The grantee party acknowledges that it was unable to attend meetings on 27 July 2011 and 8 February 2012 but, in its response, says it should also be acknowledged that the grantee party had expressed interest in attending earlier native title party meetings in March and April 2011 which had been postponed and then cancelled (see [53] below). 

4. It is clear that there was a telephone conversation which preceded the Plummer email of 21 July 2011 which might have provided an explanation or context for the grantee party’s inability to attend the 27 July 2011 meeting.   

5. In relation to the 8 February 2012 meeting, I note the following:

   (a)   Mr Eaton emailed Mr Abbott on 10 January 2012 to invite representatives of the grantee party. Mr Abbott emailed Mr Eaton on 23 January 2012 as follows (Annexure CAM-004):

   I have spoken to my client who has returned from working in Brazil on the weekend. It is his first morning back in the office.

   I explained what is required for the presentation to the Yugunga-Nya People and he is doubtful that he can obtain all of the plans and mining proposals in the time available.

   Rather than take up valuable space on the working group agenda, and not being able to answer questions with regard to the mining lease to the satisfaction of the claim group, it might be better to apologise for not being able to attend and to request that they be included on the agenda for the following working group meeting...

   (b)   In the NTP Reply, the native title party notes the wording in an email from Mr Ingraham to Mr Abbott dated 18 January 2012, in which Mr Ingraham writes (in relation to the 8 February 2012 meeting):

   Just got back to Sydney from Brazil, how important is it for me to go to this meet? I’m back in Perth Monday [23 January 2012].

   The native title party contends that this email shows that Mr Ingraham was in Perth 2.5 weeks prior to the working group meeting and that it indicates that he did not consider the meeting to be very important (paragraph 8 NTP Reply).

   (c)   The native title party has questioned Mr Abbott’s claim to the inability to obtain its plan and mining proposals within the time frame, as it notes that the grantee party had indicated its negotiations with the Wutha People were ‘moving in the right direction’ (Mr McKellar’s affidavit, annexure CAM-004). The grantee party states it cannot see the relevance of the reference to the Wutha negotiations, noting the Wutha negotiations were at a ‘much more advanced state’ (at paragraph 44 GP Contentions).

   (d)   The grantee party states it does not regard the non-attendance as unreasonable or unusual as the representative had only just returned from an overseas working trip and would not have been able to prepare materials.

6. The grantee party in their contentions note the native title party’s claim that the grantee party’s actions met Njamal indicia vi, vii and viii and state (at paragraph 46):

   The Grantee Party does not consider the Njamal Indicia have been met.  Any delays in negotiation were either not initially caused by the Grantee Party or were not unreasonable in the circumstances.  The Grantee Party notes the significant delays in the holding of meetings by the Native Title Party and the impact upon the progress of negotiations that this had.

7. The grantee party provides more detail of the wider circumstances, referring to the effect of the native title party changing meeting plans. The grantee party details that on 22 February 2011, it confirmed its willingness to attend a working group meeting scheduled for 31 March 2011, which was rescheduled to 14 April 2011. The grantee party intended to attend the rescheduled 14 April 2011, but was advised by Mr Eaton on 7 April 2011 that the April meeting was cancelled due to sorry business.

8. The evidence presented and the submissions made by the parties demonstrate various attempts to meet and changes made according to the needs of both parties. Although the grantee party did not attend two meetings, the context and the reasons for non-attendance are to be taken into consideration and it is for the Tribunal to assess the reasonableness of the conduct in all of the circumstances. The circumstances include the preparation of material following an overseas business trip, the evidence (particularly in early 2011) of positive attempts to arrange meetings, logistical issues,  expressions of willingness to attend future meetings, notification of non-attendance within an appropriate time frame and reasonable occurrences of rescheduling and cancellation. Having regard to the evidence presented, I am not satisfied that the delay in relation to the 27 July 2011 and 8 February 2012 meetings amount to a lack of good faith.

Failure to send representatives with authority to negotiate (Njamal indicia iii, vii, xi)

1. The native title party contends the grantee party failed to send representatives with authority to negotiate, particularly in relation to the preliminary meeting held between the grantee party and native title party on 27 November 2012 in Meekatharra.

2. Arrangements for the 27 November 2012 preliminary meeting were confirmed in various emails between Mr Avina and Mr Abbott. On 9 September 2012, Mr Avina emailed Mr Abbott inviting him to send a PowerPoint presentation to be shown, if there was time, during a working group meeting on 11 September 2012; Mr Avina also advised that another meeting would hopefully be held in November 2012. On 20 September 2012, Mr Abbott sent the PowerPoint presentation (nine slides inclusive of maps of the tenement and maps showing ore blocks and uranium contours).

3. On 8 October 2012 Mr Abbott emailed Mr Avina asking: ‘will the attendance at the WGM be deemed necessary by the Group in view of the proposed agreement already offered and the PowerPoint presentation that was provided to you on 20 September?’ to which Mr Avina replied (also on 8 October 2012):

   Hi Greg

   Next step from here, we recommend that your client funds a full day meeting with Yugunga-Nya to discuss the uranium mine proposal in its entirety for:

   your client to deliver its presentation;
   your client to answer any queries; and
   the parties to commence negotiations on an agreement.

   We can email you a budget estimate for the meeting, could you please indicate your client’s meeting date preferences.

   Would you like to contact me to discuss?

   Thanks, Paul.

4. The ‘proposed agreement already offered’ referred to in Mr Abbott’s email of 8 October 2012 is the ‘draft deferred productive mining agreement’ which was sent by Mr Abbott to Mr Eaton on 31 May 2012 in order to ‘engage in negotiations’.

5. The email exchange on 8 October 2012 indicates divergent perspectives on the stage of negotiations at this point. The grantee party correspondence suggests that negotiations were at an advanced stage, while the native title party’s correspondence focussed on meeting in person to commence negotiations.

6. On 5 November 2012, Mr Avina sent an email to Mr Abbott stating 1.5 hours will be allotted for the grantee party to make a presentation, make a preliminary offer and answer any questions.  In that email, Mr Abbott was advised that to reduce costs a number of meetings were scheduled and a pro rata contribution was sought.  This was accepted by Mr Abbott and grantee party attendance confirmed by email dated 9 November 2012. 

7. At paragraph 25 of Mr McKellar’s affidavit, he states that the attendees for the preliminary meeting consisted of 12 members of the Yugunga-Nya working group, five additional Yugunga-Nya People, four staff members of YMAC (Mr McKellar, Mr Avina, Mr Piotrowski and Ms Shiosaki) and Mr Ingraham. Mr Ingraham attended on the grantee party’s behalf.

8. The native title party’s assertion that Mr Ingraham did not have sufficient authority to negotiate is based on the native title party’s understanding of Mr Ingraham’s subsequent handling of the native title party’s request with the Board, as described below.

9. The native title party asserts that it made certain requests at the preliminary meeting and Mr Ingraham indicated that the grantee party would not have difficulty with those requests (NTP Contentions paragraph 17). Paragraph 27 – 29 of Mr McKellar’s affidavit state as follows:

   27. Annexed to this affidavit and marked “CAM009” is an excerpt of the meeting minutes kept by Ms Shiosaki [YMAC’s Legal Administrative Assistant]. I draw attention to the following passages:

   A working group member asked (if the Uranium mining) will muck up the water supply. Les [Ingraham] offered to come back with some answers, but that it was mostly salt water out there, and he did not expect it would.

   ...

   YMAC advised that the group requested the funding of economic advice, and time to have some assistance with understanding the process and impacts of mining uranium. YMAC suggested $10,000 is likely to be needed for the economic advice and about $5000 for the specialist environmental advice. Les suggested it would be worth him bringing the expert to the next meeting. YMAC advised for the group to digest the economic and environmental reports it’s likely a full day would be required. Les said he would need to present this to his board who is meeting on Friday. Les said he would contact Paul Avina next week.

   28. Mr Ingraham said he would provide details on the impact of Uranium mining on the water supply. To my knowledge, this was never done.

   29. Mr Ingraham said he would respond to the requests made by the YWG the following week.

10. In their contentions, the grantee party states (GP Contentions at paragraph 19) that the grantee party’s representative (Mr Ingraham) is an Executive Director of the Grantee party and the fact that he was required to report to his Board of directors in relation to additional requirements (to those contained in the draft agreement which had been sent on 31 May 2012) of the native title party is not an indication that he did not have sufficient authority to negotiate (GP Contentions paragraph 23).  Further, the grantee party submits (GP Contentions paragraph 24) that the fact that agreement was not reached during a particular meeting, nor the fact that the Board rejected requests from the NTP (paragraph 25) does not mean that the representative did not have sufficient authority to negotiate.

11. There are two documents in evidence which are particularly relevant to the factual dispute about the preliminary meeting.

12. The first document is the Notes on the Working Group meeting of 27 November 2012 prepared by YMAC (Annexure CAM-009 to the McKellar affidavit; for clarification, I note Mr McKellar refers to these as Minutes taken by Ms Shiosaki) and the other is the Report to the Board prepared by Mr Ingraham for the Board meeting in late November 2012 (Annexure LJI-013 to the affidavit of Mr Ingraham).

13. The key difference between the accounts and the position of the parties is that the native title party contends that both environmental and economic advice was requested and the expected cost was disclosed to the grantee party as being $10 000 for economic advice and $5000 for environmental advice, whereas in his report to the Board Mr Ingraham identifies only a request for environmental advice and includes his cost estimate of ‘in the range of 30k to 40k’ and including a statement in bold in respect of all requests, inclusive of an expert attending a full day meeting: ‘The total cost of their expectations is almost 100k, this is not deemed to be acceptable to the Board of Yellow Rock’ (see [97] below).  The meeting Notes prepared by the native title party say that Mr Ingraham thought that the expert should come to the next meeting. 

1. It does not appear to be disputed that the cost estimate prepared by Mr Ingraham was not raised with the native title party.  There is no evidence that the native title party was aware of these estimates.  There is no evidence provided (in the form of quotes prepared at the time) to support the estimates. 

2. The native title party, at paragraph 15 of its contentions, states that they requested the grantee party to fund:

(a)environmental advice to help understanding of the likely impact of uranium mining on Yugunga-Nya country;

(b)economic advice to assist in  determining what a suitable compensation offer to uranium mining would be; and

(c)a full day meeting to finalise negotiations.

1. This accords with Ms Shiosaki’s Notes of the meeting which refer to native title party questions about whether uranium mining is dangerous and whether it would “muck up” the water supply and a request for assistance to understand the process and impact of uranium mining.  The cost estimated by the native title party suggests they were seeking general rather than highly technical advice.  It appears that in the course of Tribunal mediation assistance facilitated by Member Shurven, the Department of Mines and Petroleum were able to provide general information about uranium mining to the native title party. 

2. Although Mr Ingraham presented his report to the Board in late November 2012, recommending that the request be rejected, it is suggested that the Board did not in fact reject the request until around 18 March 2013.  The request which the Board did ultimately reject appears to have been the same proposal which had been put to them within days of the preliminary meeting in late November 2012.  A copy of the Board’s decision is not in evidence. The native title party provided evidence that it was not until the first Tribunal-assisted mediation conference between the parties on 23 April 2013 that Mr Ingraham advised that the Board would not grant the requests.

3. The native title party’s impression of Mr Ingraham’s level of authority is drawn from their assertion that Mr Ingraham ‘indicated there would not be any difficulty for the grantee party to agree to the requests at the preliminary meeting’, and that ‘the Grantee Party’s subsequent rejection of the Requests indicates that the Grantee Party sent the its [sic] Representative without the authority to negotiate’ (at paragraphs 17-18 NTP Contentions).

4. It is clear that while Mr Ingraham was representing the grantee party in the negotiations, he needed to obtain the approval of the Board in certain circumstances. In their contentions the grantee party says, ‘the Grantee Party’s Representative was authorised to negotiate with the Native Title Party on the draft agreement that had been sent on 31 May 2012 and answer any questions that he could’ (paragraph 22), and ‘the fact that he was required to report to his Board of directors on what was additionally required by the native title party is not an indication that he did not have sufficient authority to negotiate’ (paragraph 23). On this point, I note my comments about the grantee party’s perspective at [59] above.

5. The issue of authority is not about whether people holding particular positions within the corporate entity comprising the grantee party attend meetings, but rather whether the persons who attend the meetings on behalf of the grantee party have the requisite authority to engage in substantive negotiations and not simply listen or argue. Then the question is whether the person representing the grantee party manifestly and objectively conducted themselves as if they had such authority.    The native title party contentions suggest that Mr Ingraham conducted himself in a way which suggested he had the requisite authority but that it was his failure to “deliver” which indicated that he did not.

6. The rejection of the proposal by the Board is not of itself indicative of a lack of authority by the negotiator and it is not unreasonable to expect that significant expenditure would need approval at a higher level. 

7. As suggested above, there appears to have been, at the very least, a failure in communication immediately following the 27 November 2012 meeting. The parties had quite different expectations of the request and the cost of advice, which could have been resolved through better communication and engagement at the time.  Mr Ingraham made an assessment of the likely cost of the advice requested, and the costs of a meeting of the parties and the author of the advice, and took a view that the cost was unacceptable. That assessment and view was not shared with the native title party and there is no evidence to suggest that any alternative was proposed or considered.

8. While it is apparent that Mr Ingraham held the view that the cost was unacceptable, and that the Board rejected the request, it is not clear if the request itself (that is the provision of assistance for certain advice) was unacceptable, as opposed to the cost being unacceptable.  

9. There was an email from Mr Ingraham to Mr Abbott dated 17 December 2012 (Annexure LJI-014) updating Mr Abbott on the negotiations and setting out the request and costs as provided in the report to the Board (i.e. $100 000 as contained in Mr Ingraham’s report to the Board).  The last paragraph of the email says: ‘Can you come back to me with options I can put to the Yellow Rock Board of Directors to resolve this matter’.  There is no reply from Mr Abbott provided in the material before me and no material to suggest that any alternatives were developed, considered, shared, or negotiated. 

10. The Njamal indicia which the native title party suggest the grantee party meet are as follows:

    (iii) The unexplained failure to communicate with the other parties within a reasonable time;

    (vii) Failure to take reasonable steps to facilitate and engage in discussions between the parties; and

    (xi) Sending negotiators without authority to do more than argue or listen

11. In Cosmos v Mineralogy, the grantee party representative: gave a presentation at the Kuruma Mathudunera working group meeting; did not make an offer; indicated he would listen and then report back to the Board; however, a response from the Board was never received. Deputy President Sosso found that ‘its representatives only gave a presentation and made no substantial effort to either engage with the representatives of the second native title party or negotiate with them’ (at [84]). He highlighted that there was no obligation on the grantee party to actually reach agreement, but clarified the position as follows (at [86]):

    ...there was an obligation imposed on the grantee party to go beyond merely outlining its position and hearing what the second native title party submitted. The grantee party was obliged to negotiate, namely “communicating, having discussions or conferring with a view to reaching agreement” per R D Nicholson J in Strickland at 312.

12. In this matter, Mr Ingraham did pass on requests to the Board in late November 2012.  The request included his own estimate of cost and his recommendation based on that cost estimate. This was unknown to the native title party. Mr Ingraham did seek information or advice from Mr Abbott as to alternatives to put to the Board (not the native title party) which might have resolved the matter.  There is no evidence that there was any communication with the native title party on the issue and no notification to the native title party that he had not informed the Board of their estimate of between $5000-$10 000.  There is no evidence that alternative arrangements were in fact explored or advanced before the Board finally rejected the request in March 2013. 

13. The native title party (see paragraph 25 of NTP Contentions) concedes that failing to effectively communicate may not be inherently indicative of a failure to negotiate in good faith but go on to say that the failure disrupted the negotiation in its infancy.  On the evidence before me, that would appear to have been the case.  In my view, the failure to communicate, have discussions or confer with a view to reaching agreement in relation to an issue of significance in the negotiations was a lapse in good faith negotiations.  I accept that Mr Ingraham had sufficient standing to negotiate on behalf of the grantee party but his conduct of the negotiations in relation to this element (particularly indicia iii and vii) fell short of the good faith requirements.

14. The native title party also raise an issue in relation to representation at mediation sessions. The evidence indicates that at the first two mediation sessions facilitated by the Tribunal, Mr Ingraham attended (for which the native title party presents no issue), though the third mediation conference was attended by Mr Valentine, whom the native title party regard as not appearing to have familiarity with the negotiations (see paragraph 47 of Mr McKellar’s affidavit affirmed in January 2014 and paragraph 9 of the NTP Reply). In the present circumstances, there is little information apart from Mr McKellar’s assertion that Mr Valentine had little familiarity with the negotiations. This may well have detracted from the prospects of being able to reach agreement and having quality discussions.  On the basis of my conclusion in relation to Mr Ingraham (that his conduct fell short of communicating, having discussions or conferring with a view to reaching agreement) I conclude that the participation of Mr Valentine did not improve the position of the grantee party in relation to the good faith obligations.

Failure to respond to the native title party requests in relation to the negotiation (Njamal indicia iii, iv, vii, viii, ix, xviii)

1. Much of the discussion above (particularly at [71] and [76]) is relevant to a consideration of this aspect of the native title party’s contentions.  The native title party contends there were various instances of a lack of contact and response from the grantee party. The native title party asserts that delay in responses from the grantee party prevented negotiations from progressing. The native title party says that ‘following the grantee party’s attendance at [the] Preliminary Meeting, the Grantee Party effectively cut off communication’ and ‘did not respond to the requests made by the Native Title Party, despite several attempts by the Native Title Party to follow up’ (at paragraph 9 NTP Contentions).

2. As is noted above, there is a difference between the parties’ accounts of what the native title party’s requests actually were, as raised during the preliminary meeting. That difference aside, the native title party’s issue is with the timing of responses in the months following. The following sequence of events is relevant to my evaluation.

3. Ms Shiosaki’s Notes of the preliminary meeting indicate that Mr Ingraham stated he would need to report to the Board at their meeting on Friday (i.e. 30 November 2012) leaving the inference that a response would be known following the Board meeting. The grantee party does not expressly state whether it accepts the inference.

4. Mr Avina sent an email to Mr Ingraham on 24 January 2013 asking whether the grantee party had had an opportunity to ‘consider the Yugunga-Nya’s request to fund independent economic and environmental advice’ and indicating the estimates of advice were between $5000-$10 000 (see annexure CAM010 to Mr McKellar’s affidavit). On 14 February 2013, Mr Ingraham replied that the matter is on the agenda for the Board meeting being held next week (i.e. during the week commencing 18 February 2013). On 18 March 2013, Mr Avina emailed Mr Ingraham to inquire about the Board’s response and requesting a response from the Board before 25 March 2013. Mr McKellar states the native title party was not informed of the Board’s response until the mediation meeting on 23 April 2013 and that Mr Ingraham did not email or otherwise communicate with himself or Mr Avina subsequent to his email of 14 February 2013.  Mr McKellar emphasised that the native title party did not receive further details from the grantee party of the impact of uranium mining to ground water and, as at the date of the contentions (27 January 2014 and amended 29 January 2014) had still not received those details.

5. This lack of information is regarded by the native title party as disrupting the negotiation ‘in its infancy’ (at paragraph 25 NTP Contentions), preventing the native title party from considering the grantee party’s response at a working group meeting held on 26 March 2013 and devising an alternative course of action accordingly (NTP Contentions at paragraph 28; McKellar’s affidavit at paragraphs 48 and 58).

6. The native title party also asserts these actions fall short of the ‘Dimer Obligation’ to maintain open communication to facilitate effective negotiations and relate to items iii, iv, vii, viii, ix and xviii of the Njamal indicia.

7. In response, the grantee party does not accept the characterisation that it ‘effectively cut off communication’ after the preliminary meeting and asserts the native title party’s inclusion of the word ‘effectively’ is ambiguous. The grantee party asserts that it ‘sent a representative for the Native Title Party a number of emails following the Preliminary Meeting, including advising that the Board of the Grantee Party had rejected the Requests’  but explains that the email correspondence had ‘been lost due to technology error’ and therefore, copies could not be recovered and provided as evidence (paragraph 30 GP Contentions; see also paragraph 38 of Mr Ingraham’s affidavit where he states he sent an email to Mr Avina on 18 March 2013 but it was lost due to an error). The native title party confirms the grantee party did not produce evidence of an email being sent advising of the Board’s response (i.e. 18 March 2013 email).

8. The grantee party does not consider that a delay of a few months represented a failure to respond or an act of bad faith and ‘did not consider that this point of negotiation was any more critical than any other stage of the negotiations’ (at paragraph 70 GP Contentions). The grantee party ‘considers that it responded in about the same time frames as which the native title party also responded to queries and whilst the delays from both parties held up the negotiation process, no single delay was more crucial than any other’ (at paragraph 108 GP Contentions).

9. The thrust of the native title party’s contention regarding the grantee party’s decision in relation to the environmental and economic reports lies not so much in the refusal to agree to pay for the reports but the failure to advise the native title party promptly, which would have enabled the native title party to consider alternative approaches. The native title party’s contention also refers to the failure to communicate why the proposal was rejected, which would also have provided the opportunity for other approaches to be considered. 

10. The grantee party does not suggest in their contentions that the request for advice itself was unreasonable; the notation by Mr Ingraham in his report to the Board only suggests that the cost was unreasonable or not acceptable.  Mr Ingraham had formed a view as to the request in late November 2012.  On the evidence presented, it appears the Board made a decision sometime between 18 February 2013 (as per Mr Ingraham’s email that the Board would meet that week) and 18 March 2013 (the date that Mr Ingraham states he sent the lost email of 18 March 2013 advising of the Board’s decision). However, I note the allegation of the inconsistent statement made during the 2 May mediation conference (see [79] above).

11. Although the Board did not, apparently, make its decision until the period of 18 February to 18 March 2013, objectively it appears unreasonable that Mr Ingraham did not engage with the native title party (which he could have done so from late November 2012) to consider alternatives. He asked Mr Abbott for alternatives. He was aware, based on his own recommendation, that it was unlikely that the Board would agree. He must also have been aware that the failure to agree and the delay in dealing with the expectations of the native title party would protract negotiations.   Again, I believe that the grantee party’s actions fall short of the behaviour expected of a negotiating party and constitute a lapse in good faith negotiations. This is a failure by the representative of the grantee party and therefore the failure of the grantee party. 

Failure to act reasonably and honestly

1. The native title party contends the grantee party was not acting honestly and reasonably as it made several inconsistent statements ‘throughout negotiations and particularly following the Preliminary Meeting, and in the mediation run by the National Native Title Tribunal’ (at paragraph 7(iv) NTP Contentions) and ‘failed to meaningfully participate in the NNTT mediation conferences’ (paragraph 36 NTP Contentions). I note the native title party made a general reference in its contentions to the overarching obligation from Western Australia v Dimer (i.e. that the final Njamal indicium seems to express that the overarching obligation imposed by s 31(1)(b) of the Act is to act honestly and reasonably with a view to reaching agreement: see [29] above).

2. The first issue the native title party raises is that, at the mediation conference on 23 April 2013, the grantee party stated the Board had considered and rejected the native title party’s requests (raised at the preliminary meeting) and sent notification of the rejection to the native title party, but then made a contrary statement at the mediation conference on 2 May 2013 that the requests had not been considered by the Board (see paragraph 32-34 of its contentions). The native title party reiterates that it did not receive notification that the Board had rejected its request (as explained above) and states that the first time it was advised of the Board’s decision was during the mediation on 23 April 2013. The grantee party again asserts it sent notification of the rejection of the requests but lost the email due to a technological failing. The grantee party also states its understanding that the native title party’s request was in relation to environmental advice only (i.e. impact of uranium mining) and that it did not receive a request for economic advice. On this point, the native title party notes that: (a) Mr Ingraham acknowledges receipt of an email from Mr Avina on 24 January 2013 ‘advising that the cost of environmental and economic reports would be in the order of between $5,000 to $10,000’ (at paragraph 34 of Mr Ingraham’s affidavit); and (b) Ms Shiosaki’s Notes of the preliminary meeting record a request for economic advice (see paragraphs 6-7 NTP Reply).

3. The second issue is in relation to Mr Ingraham’s communication with the Board regarding the cost of environmental advice sought by the native title party. The native title party contends ‘the Grantee Party presented its Board a request for environmental advice that was far more expensive than what the Native Title Party had requested’ (at paragraph 35).  The evidence presented indicates Mr Ingraham provided an email to Mr Abbott on 17 December 2012 (annexure LJI014) and a report to the Board (LJI015) which both advised the native title party’s request for environmental advice (i.e. uranium mining report) would be ‘in the range of 30k to 40k’. Although this email and the report to the Board indicate an estimate of between $30 000 to $40 000, I note the Tribunal’s mediation report for 2 May 2013 (annexure CAM014) states ‘Mr Ingraham stated he believed the type of environmental report being sought was expensive and that total report costs would amount to $100,000 which the board would not agree to...’ (as referred to in paragraph 41 of Mr McKellar’s affidavit affirmed 27 January 2014). The native title party estimated the advice would be in the vicinity of $5000-$10 000 (as indicated in the email dated 24 January 2013 from Mr Avina to Mr Ingraham, the follow-up email dated 18 March 2013, and the record in Ms Shiosaki’s Notes of that amount being communicated during the preliminary meeting on 27 November 2012). Mr McKellar states that he does not know whether the Board ever considered the native title party’s request for environmental advice priced at approximately $5000.  In contentions in reply, the native title party says at paragraph 22 that the estimate prepared and provided by Mr Ingraham to the Board is misleading and implies that the estimate had come from the native title party.

1. The grantee party acknowledges the difference between each party’s estimate of amounts and does not regard the difference as indicating a lack of honest and reasonable behaviour. Mr Ingraham states the native title party did not provide an estimate of the cost of the request during the meeting (and I note Ms Shiosaki’s Notes indicating the estimate was provided; see the paragraph above). On 24 January 2013, Mr Ingraham received the email from Mr Avina, containing the native title party’s estimate of between $5000-$10 000 for the advice; Mr Ingraham states this was the first time he heard of the estimate. There is no evidence of Mr Ingraham informing the Board of the $5000-$10 000 estimate upon hearing of the estimate for the first time or any time thereafter.

2. I also note the grantee party provided estimates to the Board regarding the other two requests (i.e (a) expert’s attendance with the report to be available to answer any questions, which Mr Ingraham estimated to be between $15 000 to $20 000 and (b) funding a full day meeting in Meekatharra with Yellow Rock and the expert consultant which Mr Ingraham estimated to the Board and to Mr Abbott as around $35 000). In Mr Ingraham’s report to the Board, in relation to those two requests and the environmental report request, it reads ‘the total cost of their expectations is almost 100k from, this is not deemed to be acceptable to the Board of Yellow Rock’. There is no evidence of Mr Ingraham informing the native title party that he communicated those specific estimates to the Board.

3. The native title party also contends ‘the Grantee Party did not convey to its Board the Native Title Party’s request for economic advice’ (at paragraph 35). I note the grantee party asserts this request was not raised during the preliminary conference, while Ms Shiosaki’s Notes of the preliminary meeting include that request. Mr Avina’s email to Mr Ingraham of 24 January 2013 provided an estimate for economic advice and Mr Ingraham states this email was the first he had heard of the request for economic advice (at paragraph 35 of his affidavit). Mr McKellar’s email of 30 May 2013 provided two quotes for economic advice and the matter was put to an end on 13 June 2013 when Mr Ingraham emailed Mr Avina and Mr McKellar advising the Board had rejected the request for economic advice.

4. In relation to whether meaningful participation took place during mediation, the native title party refers to the grantee party’s non-attendance at the fourth mediation conference on 10 July 2013 and the grantee party sending Mr Valentine to the third conference on 19 June 2013, when, according to the native title party, he apparently exhibited insufficient familiarity with the negotiations (see above). The grantee party asserts it attended the third and fourth mediation sessions, though the Tribunal’s mediation reports indicate no grantee party representative attended the fourth session on 10 July 2013. The native title party also regards the inconsistent statements made (see [96] above) as detracting from meaningful participation.

5. I expect that Mr Ingraham’s estimate for environmental advice was founded on his experience and knowledge for advice of a certain level of technical detail. It is not clear why he did not present the native title party’s estimate of $5000-$10 000 to the Board upon becoming aware of their estimate (by Mr Avina’s email of 24 January 2013 if not beforehand), in the interests of full disclosure and facilitating a proper response. It also is not apparent that he communicated his estimate of between $30 000 and $40 000 for environmental advice and $100 000 in respect of the three elements of the request to the native title party during the preliminary meeting or subsequently. Mr Ingraham’s own report to the Board of the preliminary meeting includes his estimates, but there is no evidence that his estimate was communicated to the native title party. The evidence suggests the native title party was unaware that Mr Ingraham had made those estimates.

6. I do not have any material before me that details the deliberations of the grantee party Board regarding the request for environmental advice.  However, the Ingraham report presented to the Board made it unlikely that the request would be accepted by the Board based on cost alone. That representation of the request was not discussed with the native title party and was not disclosed to the native title party for five months, which, in my view and on these particular facts was unreasonable and a lapse in good faith negotiations. 

7. In relation to the alleged failure by Mr Ingraham to initially present the native title party’s request for economic advice to the Board I cannot draw any conclusion, however, I can only consider it an omission or oversight on the part of Mr Ingraham.

8. I accept the Tribunal’s mediation report that there was no grantee party representation at the fourth session on 10 July 2013. On that day the grantee party sent an email stating its intention to terminate the ‘mediation’ and lodge a ‘determination application’ (McKellar affidavit paragraph 50). While this certainly did not assist with progressing negotiations, it is the prerogative of any party to withdraw from negotiations and make a s 35 application if the preconditions are met. That alone is not the basis for a conclusion of a lack of good faith.

Conduct of the native title party

1. At various points, the grantee party has referred to the conduct of the native title party, to provide context of how reasonable its own actions have been. In particular, the grantee party refers to the fact that it did not receive a response from the native title party to its ‘offer’ made on 31 May 2012 until after the future act determination had been lodged (i.e. after 30 October 2013). I note that the ‘offer’ referred to by the grantee party in its contentions is the document entitled ‘draft deferred productive mining agreement’ provided in order ‘to engage in negotiation in good faith’. I also not that after the matter had been referred for a future act determination on 30 October 2013, Mr McKellar provided a counter-offer on 18 November 2013.  Between the offer and counter-offer the parties were engaged in the preliminary meeting and Tribunal-facilitated mediation and various items of correspondence regarding requests raised at the preliminary meeting.

2. The grantee party also notes that a working group meeting was held on 7 October 2013, to which it was not invited despite requesting attendance during the Tribunal-facilitated mediation on 2 May 2013, and the native title party had not invited the grantee party to any subsequent working group meetings.

3. In relation to that meeting, in Mr McKellar’s affidavit (affirmed 10 February 2014) he provides reasons for not inviting the grantee party as follows (at paragraph 8):

   a. The representatives of Yellow Rock had said they already commenced the s 35 process;

   b.   The attitude of Yellow Rock representatives towards native title and indigenous Australians was very negative; and

   c.    It was the first opportunity for the Yugunga-Nya Working Group to consider how to proceed since Yellow Rock had rejected their proposal. I wanted to give the Yugunga-Nya Working Group an opportunity to consider how to progress the negotiations without being pressured by the presence of representatives from Yellow Rock.

4. The evidence before me also presents additional circumstances in between 2 May and 7 October 2013. On 18 July 2013, Mr McKellar sent a letter by facsimile to the grantee party referring to the preliminary meeting, the Tribunal-facilitated mediation sessions, and, the grantee party’s letter of 13 June 2013 with the purpose of inviting ‘Yellow Rock to participate in negotiations’. The letter advised the grantee party of the next Commonwealth-funded working group meeting pencilled in for September 2013 and noted, as ‘the available time will be much more limited than Yellow Rock and Yugunga-Nya would each wish to devote to this issue, YMAC would like to see Yellow Rock engage in negotiations with Yugunga-Nya, with the limitations to be alleviated as much as possible by other means, such as Yellow Rock assisting YMAC to advise the Working Group meeting through correspondence in advance of the meeting’. This was followed by a phone conversation between Mr McKellar, Mr Ingraham and Mr Chesson on 19 July 2013 which, as stated at [44] above, indicated the relationship between the representatives of the parties had become negative and personal.

5. In terms of the delays, the grantee party asserts that the ‘Native Title Party’s meeting dates were infrequent’ and that the grantee party responded in ‘about the same time frames as which the Native Title Party also responded to queries and whilst the delays from both parties held up the negotiation process, no single delay was more crucial than any other’ (at paragraph 108 GP Contentions). These issues of delay and scheduling have already been addressed above.

6. The conduct of the native title party has been taken into consideration, as it can influence the assessment of the grantee party’s conduct. I have taken into account the scheduling of meetings and any invitations or lack thereof. I have also taken into account the timing of the native title party’s response in the circumstances.

7. The material before me suggests that any blame for delay in convening a meeting of the parties before the preliminary meeting eventually happened in November 2012 can be equally shared.  However, for nearly five months following the preliminary meeting, and because of the expectations raised by the representative of the grantee party, the native title party was awaiting a response in relation to their request for the provision of advice (at least) in relation to the impact of uranium mining on land and waters the subject of their native title claim. According to the native title party, they were not informed of the decision of the grantee party until 23 April 2013, at a mediation meeting facilitated by the Tribunal.  At that point the Tribunal was convening party meetings at the request of the Government party. The grantee party says that it did inform the native title party before then, but nevertheless after the Tribunal had been asked for assistance. 

8. Accordingly, I do not find that the behaviour of the native title party in this regard provides a context for the grantee party’s behaviour which paints the grantee party in a better light.  I do not think it unreasonable that the native title party did not respond to the document sent to them on 31 May 2012 while they held the expectation that negotiations had only commenced at or following the November 2012 meeting, and while they were awaiting a response from the grantee party in relation to advice concerning the impact of uranium mining on land and waters the subject of their native title claim.  Once it was apparent that the request the native title party made to the grantee would not be met, the native title party took steps to obtain information itself and ultimately did make a counter-offer, albeit after the matter had been referred for determination.

Conclusion

1. Accepting and adapting the ‘good faith’ analysis in Placer v Western Australia, good faith requires the grantee party to act with subjective honesty of intention and sincerity, but an objective standard also applies.  The grantee party’s 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 grantee party as a whole and have regard to the Njamal indicia 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.

2. Applied to the facts and evidence before me, I accept that, based on the agreement reached with the Wutha people, the grantee party (subjectively) believed: that there was a reasonable offer on the table to the native title party; that they had provided written material regarding the project to the native title party (Power point presentation provided in September 2012); and, that they had given a short presentation and answered some questions at the preliminary meeting with the native title party to explain their project.  Further, the grantee party believed that issues or concerns regarding environmental matters could be dealt with through the ordinary processes.

3. Looking at the conduct of the grantee party as a whole, there were matters arising from the preliminary meeting, relevant to the future act, which the grantee party representative had undertaken to follow up with the Board.  The evidence, which does not appear to be disputed, suggests that the grantee party representative engaged openly and positively with the native title party in the preliminary meeting.  The grantee party representative indicated that a response to the matters raised would be provided reasonably quickly.

4. Looking at the quality of the conduct of the grantee party, the positive attitude demonstrated by the grantee party representative to the matters raised by the native title party in the preliminary meeting was not reflected in Mr Ingraham’s representation made to the Board.  That of itself is not necessarily damning, however, the evidence suggests that the native title party was not aware or informed of what appeared to be a shift in attitude for some 5 months, at best by email in late March 2013 (noting the claimed technological error) or at worst in a Tribunal facilitated mediation conference on 26 April 2013.  The grantee party’s contentions shed little light on the issue and there is nothing in the material in the nature of a Board decision or minute to confirm when the matter was in fact considered.  There is no evidence of alternative proposals being developed or considered, or shared and discussed with the native title party.  The evidence suggests that the Board was presented with one request for advice which reflected the grantee party’s representative’s estimate of cost as early as 30 November 2012, and that the nature of the request and cost was not modified before the Board made a decision perhaps in late March 2013, despite advice from the native title party that its (the native title party’s) cost estimate was significantly lower.  The grantee party submission in reference to the authority of the grantee party representative at the preliminary meeting says at paragraph 22 that he: ‘was authorised to negotiate with the Native Title Party on the draft agreement that had been sent on 31 May 2012 and answer any questions that he could’.

5. Recognising that the future act in question is the grant of a mining lease, and the grantee party’s proposal is to explore and mine for uranium, the request for advice on the impacts of that activity on the land and waters the subject of the native title party’s claim would not seem unreasonable.  The scope of the advice; the way the advice might be prepared and delivered; and the level of technical detail expected in such advice is where there might be scope for discussion and negotiation.  It was open to the grantee party to reject an unreasonable request made by the native title party.

6. On the facts before me, objectively, a grantee party in these circumstances might have confirmed the scope and nature of the request with the native title party before presenting it to the Board for decision. I accept that Mr Ingraham contacted Mr Abbott (advisor to the grantee party) in December 2012 asking for alternatives however there is no evidence that this occurred and no evidence of any discussion with the native title party regarding alternatives. The native title party characterises the situation as causing the negotiations to fail in their infancy and the communication failure meant that there was little negotiation beyond the provision of a draft agreement before the Tribunal facilitated meetings under s31(3) of the Act.

7. The 26 April 2013 Tribunal mediation notes (CAM012) and the 2 May 2013 mediation notes (CAM014) indicate that the cost of environmental advice remained an issue however, at the May mediation the Government party undertook to see if a State environmental officer could attend the next mediation meeting on 19 June 2013. However, on 13 June the grantee party sent an email to the native title party saying, inter alia, that: ‘The Board has made the decision to proceed to determination’ (LJI022). Nevertheless, a Mr Valentine (on behalf of Mr Abbott) attended the 19 June mediation (by phone) as did a Mr Endacott from the Department of Mining and Petroleum (DMP). Mr Endacott provided the attendees with information regarding uranium mining and an outline of the legislative and regulatory regime. The Government party also agreed to make the DMP uranium project officer available to attend the next working group meeting (CAM016). This appears to be a reasonable approach however, by this time negotiations had effectively ended. As stated at [113] above, I do not consider that the conduct of the native title party provides a context for the behaviour of the grantee party which would change my conclusions as to good faith on the part of the grantee party.

Determination

1. I am not satisfied that the grantee party negotiated in the manner required by s 31(1)(b) in this matter. According to s 36(2) of the Act, the Tribunal does not have the power to proceed to make a determination on this future act determination application brought by the grantee party in respect of mining lease 51/771.

ATTACHMENT A

Annexures CAM001 – 020 to the affidavit of Mr Colin Alec McKellar affirmed 27 January 2014;
Annexure CAM021 to the affidavit of Mr Colin Alec McKellar affirmed 10 February 2014

(i)CAM001 – Mining tenement summary report for mining lease 51/771, published by DMP and created 24/01/2014;

(ii)CAM002 – Letter from DMP to YMAC dated 1 October 2010 enclosing the s 29 notice;

(iii)CAM003 – Email chain between Ms Angela Plummer of the grantee party representative company and a Mr Ryan Eaton from YMAC between 22 February 2011 and 21 July 2011;

(iv)CAM004 – Email chain between Mr Abbott and Mr Eaton between  23 September 2011 and 23 January 2012;

(v)CAM005 – Email dated 31 May 2012 from Mr Abbott to Mr Eaton;

(vi)CAM006 –  Email chain between Mr Abbott and Mr Paul Avina of YMAC from 5 July 2012 to 20 September 2012;

(vii)CAM007 – Email chain between Mr Abbott and Mr Avina on 8 October 2012;

(viii)CAM008– Email chain between Mr Abbott and Mr Avina between 5-9 November 2012;

(ix)CAM009 – Minutes recorded by YMAC from the preliminary meeting held on 27 November 2012 in Meekatharra;

(x)CAM010 – Email chain  between Mr Avina and Mr Leslie Ingraham, Executive Director of Yellow Rock Resources Ltd, from 24 January 2013 to 18 March 2013;

(xi)CAM011 – Letter from DMP to the native title party dated 28 February 2013;

(xii)CAM012 – Tribunal record (synopsis and outcomes) of the first mediation conference held 23 April 2013;

(xiii)CAM013 – Email chain between Mr Avina, a native title party representative, and Mr Ingraham, a director of Yellow Rock Resources Limited, dated 24 April 2013;

(xiv)CAM014 – Tribunal record (synopsis and outcomes) of the mediation conference held 2 May 2013;

(xv)CAM015 – Email chain between Mr Colin McKellar, YMAC, and Mr Ingraham, between 30 May 201 and 13 June 2013

(xvi)CAM016 – Tribunal record (synopsis and outcomes) of the mediation conference held 19 June 2013;

(xvii)CAM017 –  Tribunal record (synopsis and outcomes) of the mediation conference held 10 July 2013;

(xviii)CAM018 – Email from Mr Abbott to the Tribunal and other parties dated 10 July 2013

(xix)CAM019 – Letter from Mr McKellar to the Directors at Yellow Rock Resources dated 18 July 2013; and

(xx)CAM020 – Letter from Mr McKellar to Mr Ingraham dated 18 November 2013

(xxi)CAM021 – Email chain between Mr Abbott and Mr Avina between 5 and 21 November 2012 (the email from Mr Avina dated 5 November 2012 attaches ‘Yellow Rock Resources Ltd’ Initial Offer Key Terms’ as prepared by YMAC)

ATTACHMENT B

Annexures LJI-001 – 024 to the affidavit of Mr Leslie James Ingraham, affirmed 4 February 2014:

(i) LJI-001 – Email correspondence between Ms Plummer and Mr Eaton between 16 February 2011 and 21 July 2011;

(ii) LJI-002 – Email correspondence, as detailed under LJI-001 ;

(iii) LJI-003 – Email  correspondence between Mr Abott and Mr Eaton, between 23 September 2011 and 23 January 2012;

(iv) LJI-004 – Email correspondence between Mr Ingraham and Mr Abbott dated 11 January 2012 and 18 January 2012;

(v) LJI-005 – Email correspondence between Mr Eaton and Mr Ingraham between 23 September 2011 and  23 January 2012;

(vi) LJI-006 – An email from Mr Abbott to Mr Eaton on 31 May 2012;

(vii) LJI-007 – A copy of a draft deferred productive mining agreement between the native title party and the grantee party for the proposed lease, as sent from Mr Abbott to Mr Eaton on 31 May 2012;

(viii) LJI-008 – Email correspondence between Mr Abbott and Mr Avina between 5 July 2012 and 9 September 2012;

(ix) LJI-009 – A copy of the PowerPoint presentation prepared  by Yellow Rock Resources Limited, supplied to Mr Avina on 20 September 2012 for intended inclusion in the November 2012 meeting;

(x) LJI-010 – Email correspondence between Mr Abbott and Mr Avina on 8 October 2012;

(xi) LJI-011 – Email correspondence between Mr Abott and Mr Avina on 9 November 2012;

(xii) LJI-012 – Email correspondence, as detailed in LJI-011 above

(xiii) LJI-013 –  Report prepared by Mr Ingraham for Yellow Rock Resources Limited’s Board on the preliminary meeting held 27 November 2012;

(xiv) LJI-014 – Email from Mr Ingraham to Mr Abbott dated 17 December 2012;

(xv) LJI-015 – Email correspondence between Mr Avina and Mr Ingraham (copying in Mr Abbott and Mr McKellar) between 24 January 2013 and 18 March 2013;

(xvi) LJI-016 – Email correspondence, as detailed in LJI-015 above;

(xvii) LJI-017 – Letter from DMP to the native title party dated 28 February 2013;

(xviii) LJI-018 – Email correspondence between Mr Ingraham and Mr Avina (copying in Mr Abbott and Mr McKellar) between 23 and 24 April 2013;

(xix) LJI-019 – Tribunal record of mediation held on 23 April 2013;

(xx) LJI-020 – Tribunal record of mediation held on 2 May 2013;

(xxi) LJI-021 – Email from Mr McKellar to Mr Ingraham dated 30 May 2013;

(xxii) LJI-022 – Email from Mr Ingraham to Mr Avina (copying in Mr Abbott) dated 13 June 2013, replying to Mr McKellar’s email in LJI-021 above;

(xxiii) LJI-023 – Record from the Tribunal’s website of the future act determination application for the proposed lease;

(xxiv) LJI-024 – Letter dated 18 November 2013 from Mr McKellar to Mr Ingraham.