BROWNLEY v STATE OF WESTERN AUSTRALIA

Federal Court of Australia|1999-08-19|Before: Lee J

REASONS FOR JUDGMENT 1 In 1996 the applicants applied to the National Native Title Tribunal ("the Tribunal") under s 13 of the Native Title Act 1993 (Cth) ("the Act") for a determination of native title in respect of land in the Eastern Goldfields region of Western Australia. In February and June 1996 the applicants became registered native title claimants under the Act. Between May and September 1996 the first respondent ("the State") gave notice, under s 29 of the Act, of an intention to grant to the second respondent ("Anaconda") eight mining leases ("the future acts") over land within the area the subject of the native title claims of the applicants. Other registered native title claimants who made applications for determination of native title in respect of the area affected by the future acts reached agreement with the State, and Anaconda, that the mining leases be granted. 2 On 4 September 1998 the Tribunal determined that the State, as obliged by s 31(1)(b) of the Act, had negotiated in "good faith" with, inter alia, the applicants without agreement being reached. Therefore, the Tribunal was satisfied that Anaconda was entitled to apply to the Tribunal under s 35 of the Act for a determination in relation to the future acts. 3 The applicants apply to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for an order setting aside the decision of the Tribunal. Subsequent to that application for review, the Tribunal has proceeded to make a determination under s 35 of the Act and has determined that the future acts may be done by the State, subject to conditions to be complied with by the State, Anaconda, and the applicants. The decision of the Tribunal, and the application under the ADJR Act, turn on the construction of the Act as it stood before amendment by the Native Title Amendment Act 1998 (Cth). 4 Under s 169 of the Act the applicants were entitled to "appeal" to this Court, on a question of law, from any decision or determination of the Tribunal in an inquiry relating to an application under s 35 of the Act for a determination in relation to a future act. (See: the Act - ss 35, 75(1), 139(b) and 169(1)) Such an express alternative remedy available under the Act may be a ground, in an appropriate case, for the Court to decline to exercise jurisdiction under the ADJR Act. (See: the ADJR Act - s 10) 5 The applicants submit that the Tribunal erred in law in finding that a "jurisdictional precondition" to the lodgment of an application under s 35 of the Act had been satisfied, namely that the State had negotiated in good faith with the applicants. 6 The relevant facts are as follows. Before the date of commencement of the Act, 1 January 1994, the State had granted to Anaconda three mining leases for the purpose of constructing a mine, and processing plant, in the Eastern Goldfields, approximately fifty kilometres east of Leonora, to extract and refine nickel and cobalt. The proposed mine and refinery was known as the Murrin Murrin Project ("the project"). The project required the use of a substantial area of land for an open-cut mine, water supply, waste treatment ponds, ore and overburden stockpiles, sulphuric acid plant, power generation plant, fuel and chemical storage facilities, gas plant, administration and accommodation units, roadways, and an airstrip. 7 Since July 1996 the State has granted twenty-nine mining tenements for the project following accord being reached with the registered native title claimants as to the use of the land. The mining leases which constitute the future acts in this case relate to an area of land of approximately 2,500 hectares. 8 In July and October 1996 the State gave notice under s 29 of the Act in respect of three mining leases advising, inter alia, that the negotiation process commenced with the delivery of a notice. Subsequent to these notices, findings were made by the Tribunal in other matters before the Tribunal that the State had failed to negotiate in good faith in those matters. The State decided that it should recommence the negotiation process in respect of the three proposed mining leases and issued "fresh" notices under s 29 of the Act in January and February 1997. Notices under s 29 were issued in respect of the other five proposed mining leases in January, February and June 1997. 9 In February 1997 solicitors for the applicants, the Aboriginal Legal Service of WA Inc ("the ALS"), responded to the notices given to the applicants by the Department of Minerals and Energy ("the DME") on behalf of the State under s 29, by setting out a number of matters in respect of which it required negotiations to be conducted. The letter made it obvious that the applicants considered that negotiation for their agreement to the grant of mining tenements would involve consideration of the impact of the project on the rights and interests of the applicants and discussion of the conditions to be applied to the mining tenements before they were granted. 10 On 14 February 1997, by letter, and on 18 February 1997 at a meeting with the ALS, the DME advised that on behalf of the State it would be negotiating on "each tenement separately, not together as a project group". The DME undertook to provide a response to the points raised by the ALS's letter of 14 February 1997. That response was provided, with apologies for delay, on 5 June 1997. 11 Meanwhile, in April 1997 Anaconda, and the applicants, executed a "Memorandum of Understanding" ("MOU") in which the applicants agreed to the commencement of construction of plant for the project and to the grant of certain mining tenements. The applicants executed a deed with the State in which the applicants agreed that the State may issue some tenements to Anaconda to allow the project to commence. 12 The history of the negotiation process after June 1997 was set out as follows in the reasons for decision provided by the Tribunal: "ALS sent a letter to DME dated 10 June 1997 responding to the DME letter of 5 June in which ALS: · stated they could not understand how the delay in responding to the ALS letters of 7 February and 29 April could be attributed to the processing of deeds submitted to DME in April 1997; · stated that it remained uncertain as to whether or not having just DME involved in negotiations on behalf of the [State] was sufficient to constitute negotiation in good faith by the [State]; · requested reasons why the requests referred to in the DME letter (for land, office facilities or instructions to Anaconda) would not be included as part of the [State's] negotiations in good faith with respect to these tenement applications. On 15 July 1997 Mr Holmes met with Ms Walster and Mr Mirabella (of DME). The following matters were discussed: · The Native Title Party requested information about Kintyre which is a uranium mining project in the Western Desert region of Western Australia and the subject of negotiation and mediation by the Tribunal under the Act. · DME explained why the Kintyre Uranium mine was being negotiated as a project and Murrin Murrin was not ‑ Kintyre will be the subject of a State Agreement Act application; and where there are no overlapping claims the [State] is happy to negotiate on a project basis. Even with Kintyre there are no special offers but the [State] is streamlining normal processes. DME offered to arrange a meeting with the OAED [Office of Aboriginal Economic Development] and provide information about what OAED did in Kintyre. · ALS stated that they were in negotiations with Anaconda and after those negotiations were finalised they wanted to enter into negotiations with the [State]. · ALS requested DME to investigate progress regarding the commitment of the Minister for the Environment to instruct all departments to contact ALS. DME agreed to see what it could do. · ALS said that there were three main areas they were interested in with regard to the [State] which they would address more fully in negotiations with the [State] after negotiations with Anaconda. Once it was clear what Anaconda would not or could not provide, then it would be for those things that the Native Title Party would be looking to the [State] to provide. ALS spoke about: (1) More detailed response to the ALS letter of 7 February 1997. (2) Land excisions on Glenorn and Minara pastoral stations (part of the project area) as well as other areas outside the project area. (3) Land for hunting and camping, and some areas to be made Protected Areas under the Aboriginal Heritage Act 1972 (WA). · The Native Title Partywas also concerned at the use of the DME draft negotiation protocol and the Native Title Party wanted a particular protocol relevant to them. · DME expressed concern thatnegotiations could not be held with Anaconda and the [State] concurrently and said that both Anaconda and ALS should keep the [State] informed of their negotiations. · In response to the 7 February letter DME said that the [State] would not look at general requests for land as part of the negotiations; would not provide infrastructure; and would not tell Anaconda how to conduct themselves. · DME said land excision proposals would be looked at on their own merit under the usual protocols. · As regards the negotiation protocol DME said the [State] was always willing to look at suggestions and was happy to call a meeting of industry and representative bodies to discuss the [State's] draft protocol. The agreed outcome of the meeting was: The [State] would provide a summary of services available; [The State] would look into arranging a meeting between ALS and OAED re Kintyre information; ALS to provide DME a copy of the Minister for Environment's letter so DME could follow up; ALS to provide feedback on negotiations with Anaconda to enable negotiations with the [State] to commence as soon as possible; [State] to reconsider its response to letter of 7 February. On 15 July 1997 ALS sent a letter to DME: · requesting reasons why requests of the type referred to in the DME letter of 5 June 1997 would not be included as part of the [State's] obligations to negotiate in good faith; · stating that the [State] was yet to give any detailed and properly considered responses to the nine points raised in the letter of 7 February. On 18 November 1997 ALS sent a letter to DME which, among other things, noted that DME had not responded to the ALS letter of 7 November 1997 [sic February 1997] and asserted that this was an example of the failure on the [State's] part to negotiate in good faith. On 3 December 1997 ALS sent a letter to DME seeking a response to the ALS letters of 7 February 1997 and 18 November 1997. On 10 December 1997 DME sent a letter to ALS which, among other things, stated that ‑ it had already provided two responses to the 7 February letter and that it considered that it hadadequately responded to the issues raised. On 15 December 1997 in a letter from the ALS to DME, the ALS alleged a failure to negotiate in good faith due to the continued resistance of the [State] to properly consider the Native Title Party's proposal in the 7 February letter and to make proposals. By letter dated 16 January 1998 to the DME, the ALS stated that it had not yet received a proper response to the 7 February letter and that it wished to progress the negotiations by seeking the [State's] written process and content proposals relating to the negotiations. On 16 February 1998 Ms Walster spoke by telephone to Mr Holmes during which Mr Holmes asked about a response to the 7 February letter and Ms Walster said that DME had already provided a response but would go into more detail at the meeting which had been organised for 17 February 1998. At the meeting on 17 February 1998 between DME, ALS (and their clients) and Anaconda a number of the matters raised in the 7 February letter were further discussed, but there was no change in the parties' negotiating position. On 25 February 1998 ALS sent a letter to DME which, among other things, indicated that it had not received the promised further written response to the 7 February letter. On 14 April 1998 DME sent a letter to ALS which referred to the ALS request for a detailed response to the letter of 7 February and listed the occasions on which it had already responded to that letter, with a summary of those responses. This letter contains a useful summary of the [State's] negotiating position at what was virtually the end of the negotiation period and is quoted in full. 'I refer to the mediation conference held on 8 April 1998 and point 2 of the National Native Title Tribunal's facsimile of 14 April 1998. In relation to your request that your clients' proposals be put before Cabinet, 1 wish to advise that the proposals do not fall within the State's policy guidelines, as previously advised, and will not be presented to Cabinet. In relation to your request that the State act as guarantor for Anaconda and its joint venturers with respect to payments, the State will not act as guarantor for any private mining company in respect of payments to native title claimants. The State does not accept any responsibility for the content of the ancillary agreement or the associated rights and obligations of any party. Similarly, the State willnot provide compensation for actions which result in criteria set by the parties in their ancillary agreement not being met. Specifically, the State will not pay compensation for land transfers which are unable to be finalised or which occur outside the grantee party's or native title party's preferred timeframes. You, have also requested that [DME] write to Anaconda…to suggest the provision of a charge in favour of your clients. The Department does not consider it is appropriate to provide advice to grantee parties on the nature or content of their ancillary agreements. In relation to the "Summary of Queensland Commitments" to the Century Zinc project, I wish to advise that the State does not consider the matters raised to be appropriate in relation to the tenements currently under negotiation for the [Murrin Murrin] project. With reference to your request for a response to your letter of 7 February 1997, issues raised in that letter were dealt with generally in letters dated 14 February 1997 and 4 April 1997 and in detail at the meeting held on 17 February 1998. You have been provided with a copy of the minutes for that meeting and have yet to advise whether you consider these to be an accurate record of the issues discussed. The issues raised in your letter of 7 February 1997 are summarised below, followed by the State's response; · inadequacies of the State's Draft negotiation protocol. As stated at the meeting of 17/2/98, it is the State's position that the Draft negotiation protocol covers the issues raised by the Bibila Lungkutjarra protocol. · request for "high level State negotiators" to be present at negotiation, eg, State Ministers. As stated at the meeting of 17/2/98, where DMEconsiders the involvement of Ministers to be fruitful all endeavours will be made to have them attend. However, if the response of a given Minister is known to the State negotiators then it is not necessary for that Minister to attend. The same goes for other "high level" State employees. · requests that State consider provision of infrastructure for and/or annual monetary payments to the claimants. As stated at the meeting of 17/2/98, the State governs for all and as such is not in a position to provide infrastructure specifically for a small group within the community simply at their request. Where itis appropriate infrastructure such as schools, housing and roads are constructed. The State will not consider anyannual monetary payment to the claimants. · Consent of Minister for the Environment to 16 conditions identified by native title parties from the EPA's [Environmental Protection Authority] recommendations about the project. The Minister for the Environment has consented to seven additional environmental conditions agreed upon by both Anaconda and the Bibila Lungkutjarra people. The DEP has nominated a Project Officer to handle the Murrin Murrin project. DME is in frequent contact with the DEP [Department of Environmental Protection] to ensure that the good faith requirements placed upon the State by the Native Title Act are followed. · State consent to other suitable conditions, mainly heritage. Cement Creek to be gazetted as a Protected Area under the Aboriginal Heritage Act. Anaconda's treatment of heritage issues. It is the State's position that the Aboriginal Heritage Act (1972) adequately provides for protection of sites of significance. As stated at the meeting of 17/2/98, Cement Creek could be gazetted as a Protected Area under the Heritage Act, however normal procedures would still have to be followed. These procedures have been outlined to you and your clients. Madge Schwede, for the Aboriginal Affairs Department, has confirmed that she will be available to meet with you and your clients on 4 May 1998 at 10.00 am. Please advise Annaliese Walster as to whether youwillbe available to attend that meeting. A meeting between Anaconda, Bibila Lungkutjarra and the DME'S Aboriginal Liaison Officer, Meath Hammond, was held on Friday 3 April 1998. At this meeting a number of issues were discussed and the outcome was that Anaconda and Bibila Lungkutjarra maintained differences of opinion in relation to past heritage surveys. Meath Hammond offered to provide his future services should they be required. · State toconsent to grants of land to the native title parties, including excisions from pastoral leases. As stated at the meeting of 17/2/98 any land grants will be subject to normal processes. · State to ensure Anaconda participates in negotiations in an appropriate manner. As stated previously, the State can only encourage Anaconda to follow certain guidelines with respect to negotiating procedures. The State has no power to force Anaconda to behave in any particular fashion. In relation to your letter of 25 February 1998 wherein you requested the State to consider Bibila Lungkutjarra's excision proposals, a subsequent meeting was held with Mr Cliff Uren from the Department of Land Administration (DOLA) at the offices of DME on 3 April 1998. As a consequence you have submitted to DOLA on Bibila Lungkutjarra's behalf completed excision proposals today (14 April 1998) for processing. I wish to reiterate the following. · Anaconda is not in a position to transfer the lease, it can sell it, but it must be run as a pastoral lease and any transfer requires Ministerial approval. · Any transfer or subleasing arrangements are subject to the Pastoral Board's recommendations to the Minister for lands. · The Pastoral Board normally deals with any proposals expeditiously. · DOLA is not in a position to request pastoral lessees to expedite their own affairs or request lessees to sell their properties. · DOLA will accept any land excision applications but will not link them to the grant of a mining lease. · Standard procedures and criteria will apply to the excision applications and it must be shown that current and ongoing funding for living areas is available before excisions can be processed. · All land applications that have completed the DOLA processes will be subject to the future act provisions of the Native Tile Act. · The State/DOLA is committed to the process and normal referral to Departments, Shires and pastoral lessees will occur when excision applications are received. With reference to other State input, due to the efforts of the Department of Resources Development and the Western Australian Department of Training, relevant training strategies to assist the Murrin Murrin Nickel‑Cobalt Project and the nickel industry in general have been developed in co‑operation with nickel industry representatives. As Murrin Murrin Operations have agreed to a 20% local indigenous workforce, the provision of relevant training for Aboriginal people was viewed as a priority. Accordingly, 6 Aboriginal Mine Training Programs will be delivered during 1998, targeting the Eastern Goldfields region and providing training for 84 trainees. In addition, Process Operator Training will be provided to a further 15 trainees. The Department of Training's Aboriginal Services Branch is providing assistance with the coordination of these Aboriginal mine training initiatives and is also assisting Murrin Murrin operation's Aboriginal Liaison Officer to establish the company's mine training strategy. In addition, the Department of Training has facilitated contact between Murrin Murrin Operations and the Central Metropolitan college of TAFE to examine ways in which the College could assist in the development and delivery of appropriate training programs. The preceding initiatives and actions undertaken to date highlight the important contribution that the State Government can make in assisting with the skill and training requirements of Aboriginal people in the resource sector. Collectively, the seven programs and other initiatives mentioned are valued at around $1 million. Concerns have been previously expressed by the Bibila Lungkutjarra people over de‑stocking of Minara pastoral lease and the effect of closing artificial watering points on the native animals. Attached at Appendix A is a statement by the Pastoral Board of Western Australia and at Appendix B a position statementon the closure of artificial waters on pastoral leases by the Department of Conservation and Land Management. I trust that this letter has addressed your clients' concerns and has clarified the State's position in relation to a number of matters.' On 21 April 1998 ALS sent a letter to DME in which it expressed disappointment with the absence of any proposals to the Native Title Party from the [State] of any substance." 13 The Tribunal also noted that two mediation meetings involving all parties were conducted by the Tribunal after the State had referred the negotiations to the Tribunal for that purpose. 14 In May 1998, pursuant to s 35 of the Act, Anaconda applied to the Tribunal for a determination in relation to the future acts. The applicants submitted to the Tribunal that the State had not fulfilled the obligation to negotiate in good faith, as required by s 31(1)(b) of the Act, and contended, therefore, that the Tribunal did not have "jurisdiction" to make a determination under s 35 of the Act. (See: Walley v Western Australia (1996) 67 FCR 366.) 15 The Tribunal received submissions on the issue and proceeded to determine that the State had negotiated in good faith and that the Tribunal had "jurisdiction" to conduct an inquiry into the application under ss 35 and 139(b) of the Act.

Negotiation in good faith 16 In instructing a Government party to negotiate in good faith with, inter alia, native title parties, Parliament intends that the importance of the negotiation process created in s 31 of the Act be well understood. Parliament has taken the unusual step of providing an extensive preamble to the Act so that the purposes of the Act may be clearly revealed. Consideration of the preamble is not a source of restriction of general provisions of the Act but is an aid to understanding the purpose and object of such a provision. The preamble is part of he context in which the provisions of the Act are construed. (See: North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow JJ at 614, McHugh J at 637; Wacando v The Commonwealth (1981) 148 CLR 1 per Mason J at 23.)Relevantly, the preamble states that: "In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate." 17 Part 2 Div 3 Subdiv B of the Act seeks to balance protection of the nascent interests of persons claiming native title with facilitation of the doing of permissible future acts by Governments. The Act preserves the status quo until an accepted application claiming native title in land has been determined under the procedures provided by the Act. (See: North Ganalanja (supra) per Brennan CJ, Dawson, Toohey, Gaudron, Gummow JJ at 616 - 617.) To this end a registered native title claimant is taken to be the holder of native title entitled to negotiate an agreement with Government for the doing of an act by Government in respect of the land under claim. 18 The statement in s 31(1) that a Government party must negotiate in good faith is significant. It is to be presumed that a Government, whenever dealing with, or with the rights of, private citizens, would always act in good faith. The Act, however, does more than give statutory effect to that presumption. It directs a Government to act in good faith in a particular respect, namely before dealing with land by creating or disposing of interests therein, the Government is to negotiate in good faith with persons in whom the Act has vested the right to negotiate with Government with regard to the use of that land being persons who are claimants, but not then determined to be the holders of native title. But for that obligation to negotiate, imposed by the Act, a Government would have the unfettered power to deal with the land without considering the interests of such a claimant, and in the exercise of such a power, a Government may override the interests of such claimants in the belief that the proposed use of the land will advance the general good and must take priority over the undetermined interests of such claimants. The Act draws the attention of a Government to the rights and interests of indigenous persons recognized and protected by the Act and obliges a Government to respect the inchoate rights and interests of such persons. A Government is instructed to receive, and deal with, submissions from a registered native title claimant that set out how that party perceives a Government act will affect such rights and interests, and is to negotiate in good faith on those issues to obtain an agreement to the doing of the Government act that will address the requirements of Government and of the native title claimant. 19 Only limited assistance is obtained from considering the meaning ascribed to negotiation in good faith under the general law, in particular, in the field of contract. Parties engaged in negotiating the terms of a contract are assumed to be on equal terms, free to make whatever bargain they choose. Subjective judgment on how to provide appropriate protection of self-interest may affect the content or scope of "good faith" in such negotiations. Furthermore, the anticipation of fair dealing on either side is supported at law, or in equity, by the right to obtain relief for a breach thereof under statutory provisions or under doctrines of estoppel or unconscionable conduct. (See: J Edwards, Negotiating Parties and Equitable Estoppel: Is There a Duty of Good Faith? (1999) 27 ABLR 300.) 20 Legislation which imposes an obligation on employers and employees to engage in bargaining has been taken to impose an obligation on each party to bargain in good faith which, in turn, has been taken to require unacceptable proposals put forward in such negotiations to be matched with counter proposals and for every reasonable effort to be made to reach an agreement. (See: J B Atleson, Values and Assumptions in American Labor Law (Amherst: The University of Massachusetts Press, 1983) at 118.) In Western Australia v Taylor (1996) 134 FLR 211 the Tribunal noted the development of the meaning of negotiation in good faith in the field of industrial law but accepted, correctly, that the meaning of the term as used in s 31(1)(b) had to be ascertained according to the context provided by the Act. 21 A Government exercising sovereign power and a claimant to native title are not on equal terms and, under s 31, they are not engaged in making a contract for purposes of trade or commerce. The negotiation under s 31 is directed to obtaining an accord between a Government and a native title claimant for the exercise of a power of a Government in respect of the use of land in a manner that respects the connection with that land of indigenous people. 22 It is a moral conception involving a moral duty owed by a Government party to a registered native title claimant. (See: Maclay v Dixon [1944] 1 All ER 22.) The moral duty of the Government party is to properly engage in a process of negotiation with a native title claimant. The obligation placed on a Government by the Act may be a statutory recognition of a duty already understood under the general law. As Lamer CJ stated in Delgamuukw v British Columbia [1997] 3 SCR 1010 at 1123 - 1124, when referring to the prospect of the State of British Columbia undertaking negotiations with indigenous people over their claim to Aboriginal title and rights exercisable thereunder: "…the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in R v Van der Peet [1996] 2 SCR 507 at para. 31, to be a basic purpose of s.35(1) [of the Constitution Act 1982 (Can)] - 'the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown'. Let us face it, we are all here to stay." 23 The duty to negotiate in good faith imposed by s 31 incorporates, at least, some part of the duty as understood by the general law, namely an obligation to act honestly, with no ulterior motive or purpose, albeit that the negotiation may be conducted negligently or incompetently. (See: Smith v Morrison [1974] 1 WLR 659; Jones v Gordon (1877) 2 App Cas 616; Central Estates (Belgravia) Ltd v Woolgar [1971] 3 All ER 647 per Lord Denning MR at 649.) Having regard to the purpose of the Act, the concept applied by the legal system of the Netherlands in contract law would appear to be appropriate so that a Government would allow its conduct to be guided by the legitimate interests of a native title claimant. (See: H Beale, "Legislative Control of Fairness: The Directive on Unfair Terms in Consumer Contracts", Good Faith and Fault in Contract Law", J Beatson, D Friedmann (eds), (Oxford: Clarendon Press, 1995), 231 at 244.)

24 The intention of Parliament is that a Government party engage in negotiation with a native title claimant with an open mind, willingness to listen, and willingness to compromise, to reach an agreement under which the native title claimant will agree to Government doing the act it proposes. As was acknowledged by the Tribunal, the terms of s 39 of the Act indicate the scope of matters in respect of which negotiations may be conducted. Section 39 alerts a Government party to the various interests in respect of which a native title claimant may seek to reach accord with Government for the doing of a proposed act in a manner that respects those interests.

25 If a Government party ignores the requirement of the Act and seeks to exercise power without considering, and responding to, any submissions put to it by a native title claimant, relevant to the matters referred to in s 39, it will not be negotiating in good faith. Similarly, if a State purports to engage in negotiation, but, in truth, its conduct serves an ulterior and undisclosed purpose antithetical to the making of an agreement with a native title claimant, it will not be negotiating in good faith. Delay, obfuscation, intransigence, and pettifoggery would be indicia of such conduct.

26 In Western Australia v Taylor (supra)the Tribunal set out in detail its understanding of the meaning of the obligation to negotiate in good faith imposed on a Government party by s 31 of the Act. It was not suggested in this case that in that matter the Tribunal misinterpreted the relevant law. 27 In Risk v Williamson (1998) 155 ALR 393 at 413, O'Loughlin J suggested that to show absence of good faith in negotiations it may be necessary to show that the negotiating team instructed by a Government had knowledge that the Government party did not intend to negotiate with a view to obtaining the agreement of native title parties. I do not think it is necessary to show "knowledge", on the part of those instructed to negotiate on behalf of Government, of the true intention of the Government. The acts of Government include, but are not limited to, the acts of the negotiating team, and whether a Government has acted in good faith in negotiations will be a matter of the inference to be drawn from the totality of the material. Knowledge of the negotiating team of the absence of good faith on the part of a Government instructing it is not an essential fact to be established to allow an inference of lack of good faith to be drawn from that material. To determine if the obligation in s 31(1)(b) has been complied with, honesty and good faith in the conduct of a Government will be judged objectively, not by whether a Government believes that it has so acted. The standard of honest conduct is not set by a subjective belief. (See: International Alpaca Management Pty Ltd v Ensor (1995) 133 ALR 561 per Beaumont and Carr JJ at 596 - 597; Royal Brunei Airlines SDN. BHD. v Philip Tan Kok Ming [1995] 2 AC 378 per Lord Nicholls at 389, 390 - 391.) 28 The grounds on which the applicants seek review of the decision of the Tribunal are as follows:

Misinterpretation of the meaning of "negotiate in good faith". 29 The applicants' submissions on this ground were that the Tribunal erred by having regard to a "subjective standard" in assessing the conduct of the State and by failing to consider, as part of the meaning of the term "negotiate in good faith", whether the State had made "reasonable substantive offers" in the course of negotiation, and whether the conduct of the State was reasonable in the circumstances. 30 Instructed by what had been said by this Court in Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 on the question of the meaning of "negotiate in good faith", the Tribunal said as follows: "The [State] must conduct itself in negotiations with the genuine aim of obtaining an agreement of the kind contemplated by s 31(1)(b). In determining whether the [State] has done this it is not enough that the [State] believes (and believed) that it so conducted itself. The whole of the [State's] conduct, and its reasons for so acting, must be considered in the light of the circumstances then known to it. The [State's] obligation to negotiate in good faith does not require it to make reasonable substantive offers. It is not for the Tribunal to assess the reasonableness of the offer or offers (individually or together) of the [State] subject only to a very narrow qualification. The qualification is that if the approach taken by the [State] in negotiations is such that it cannot be seen as having arisen from a genuine attempt to negotiate with a view to obtaining the agreement of the native title parties then the [State] would have failed to establish the objective aspect of good faith, in the sense explained in [International Alpaca Management Pty Ltd v Ensor (1995) 133 ALR 561]. One example of this might be when the approach to negotiation taken by the [State] was so unreasonable that no reasonable person could have taken such an approach. (cf [Associated Principal Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.])" … …while it remains, in the Tribunal's view, open to have regard to whether the [State's] conduct may be viewed as reasonable, it goes too far to suggest that reasonableness is itself the test. In other words a failure to act reasonably does not thereby establish lack of negotiation in good faith; rather, it is part of the circumstances to which one may have regard in applying the test of the objective element of negotiation in good faith outlined above." 31 It can be seen that the Tribunal accepted that reasonableness of the conduct engaged in in the course of negotiations was relevant to a determination of whether the State had negotiated in good faith. Unless it can be shown that the Tribunal ignored its own instructions, it should be concluded that the Tribunal had regard to the reasonableness of the conduct of the State. 32 After considering a submission that Strickland recognized a "subjective and objective aspect" to the requirement to negotiate in good faith, the Tribunal stated that: "The Government party must conduct itself in negotiations with the genuine aim of reaching an agreement of the kind contemplated by s 31(1)(b). In determining whether the Government party has done this it is not enough that the Government party believes (and believed) that it so conducted itself. (In this regard, I accept…that if the communications by the Government party are objectively judged to have been simply a prelude to making a s 35 application rather than negotiating with a view to obtaining agreement, s 31(1)(b) would not have been satisfied.) The Government party's conduct must be considered in the light of the circumstances then known to it, and its reasons for so acting." 33 The Tribunal thus accepted as correct that which had been said by the Tribunal on earlier occasions, namely that whilst absence of honesty of purpose or intention, or of sincerity in a party's conduct, will show that the party has not acted in good faith, subjective belief in honesty of purpose or intention, or in the sincerity of the conduct, will not, in itself, answer the question whether that party has negotiated in good faith. No error occurred in that statement of the Tribunal's understanding of the law. 34 The remaining point in this ground for review, therefore, is whether the Tribunal erred in instructing itself that it was not for the Tribunal to assess whether the State had made "reasonable substantive offers". The extent to which the State participated in the negotiation process and the content of offers it made in the course thereof, or absence of such offers, will be matters relevant to the question of fact whether the State negotiated in good faith. The inference to be drawn from that material was for the Tribunal to determine. (See: Walley on behalf of the Ngoonooru Wadjari People v The State of Western Australia [1999] FCA 3 per Carr J at 17.) 35 A fair reading of the reasons of the Tribunal does not suggest that the Tribunal misunderstood the law in that regard. Although it said that it was not for the Tribunal to assess the reasonableness of any offer made by the State, the context in which that statement occurs shows that the Tribunal was fully aware of the need to look at the whole of the conduct of the State. In the context of conduct as a whole, failure to advance reasonable proposals may be shown to be part of a pattern from which an inference may be drawn that a Government has not engaged in a genuine attempt to negotiate. Later in the reasons, dealing specifically with "substantive offers" made by the State, the Tribunal, (applying an understanding of the law it formed from reading the reasons of this Court in Strickland), stated thatit was "not permitted to consider the reasonableness of offers unless they were so unreasonable or contemptuous of the process that [the State was] not acting honestly or genuinely with a view to achieving agreement". As stated by Carr J in Walley (supra) (at 17), it is not correct to say that the Tribunal is "not permitted" to consider the reasonableness of offers made by Government. If consideration of all conduct relevant to determination of the question whether the State negotiated in good faith was restricted by such a misapprehension, an error of law may be shown to have occurred in the making of the decision sought to be reviewed. 36 In this case, however, the Tribunal kept in mind the need to look at the overall conduct of the State. It found that the State: "…took a considerable number of steps to facilitate and engage in discussions between the parties (Njamal Indicium (vii) and took other steps consistent with its obligation to negotiate in good faith. It contacted the other parties (Njamal Indicium (iv), it organised meetings with the other parties both with them individually and together (Njamal Indicium (vi))." (The reference to "Njamal Indicium" is to the decision of the Tribunal (Western Australia v Taylor)in which an attempt was made to list the matters relevant to a finding on the presence or the absence of good faith.) The Tribunal also found that: "The [State] did more than facilitate and actively participate in discussions. It made proposals about things that it was prepared to do in order to achieve an agreement. The Native Title Party's complaints were that these proposals were inadequate in the circumstances. This does not necessarily lead to the conclusion that the [State] failed to negotiate in good faith,…" 37 Although the Tribunal misunderstood that it was not "permitted" to look at the reasonableness of any proposal advanced by the State, it proceeded to determine that the proposals made by the State in the course of negotiations, having regard to the conduct of the State as a whole, were not so unreasonable as to suggest that the State was not negotiating in good faith. In all the circumstances, no error of law by the Tribunal in the performance of its statutory task has been demonstrated.

Finding of fact made contrary to the evidence 38 The applicants contend that a statement by the State that negotiations were to be confined to "each tenement separately" was, in the circumstances of the case, an affront to commonsense and explicable only by the existence of an ulterior purpose on the part of the State. Accordingly, it was said, the State did not negotiate with the applicants in good faith at any time in the negotiation process. The applicants submitted that in finding that the State did not negotiate on each tenement separately, that is, by ignoring the effect of the grant of adjacent tenements, the Tribunal made a finding that was not available on the material before it and, therefore, committed an error of law. 39 The Tribunal set out as follows the material, which it said, revealed the State's "formal" position in the negotiations. ". On 14 February 1997, in response to the letter of 7 February, DME advised that it was 'handling each tenement separately, not together as a project group.' . The DME letter to ALS dated 26 June 1997 said that 'the [S]tate is only willing to discuss issues as they are related to individual tenements, not the overall project'. . The letter dated 26 June 1997 from DME to ALS stated: 'The Department is happy to discuss the grant of all tenements which have entered the negotiation process at the same meeting, however, we remind you that [the] State is only willing to discuss issues as they are related to the individual tenements, not the overall project.' . On 15 July 1997 in a letter to DME, ALS complained that the unwillingness of the [State] to negotiate on an overall project basis was an example of it not negotiating in good faith. . On 10 December 1997 DME advised ALS by letter that it will still be negotiating on the grant of individual tenements, not on a whole of project basis. . The DME letter dated 6 January 1998 to ALS said: 'As explained to you by Annaliese Walster during your telephone conversation with her on 27 November 1997, the State will be dealing with negotiations on a tenement by tenement basis, i.e. the State will be negotiating on each tenement in isolation, not on the Murrin Murrin project.' . At a meeting between ALS and DME on 17 February 1998, DME said it would deal with the negotiations on a tenement by tenement basis; that the grant of each tenement is a separate future act; and that they would be batched together for administrative purposes." 40 The Tribunal stated that it defied commonsense to think that the negotiations required by s 31(1)(b) could be satisfied in this matter by negotiating about each proposed mining lease "in isolation or separately", without regard to the scope and impact of the project. The Tribunal referred to s 39 and the obligation it imposed on the Tribunal in making a determination under s 35 in relation to a future act, in particular, the need to have regard to the way of life, culture and traditions, and the development of the social, cultural and economic structures of a native title party. The Tribunal noted that where the future acts are part of the development of the project of the magnitude of Murrin Murrin, it was obvious that for the purpose of s 39 the impact of the future acts as a whole, as part of the project, had to be considered. 41 Clearly, the Tribunal considered that any party involved in negotiations under s 31 of the Act would have regard to the terms of s 39 although the direct purpose of that section is to instruct the Tribunal on the matters relevant to a determination in relation to a future act to be made by the Tribunal under s 35 if the parties do not reach agreement thereon by negotiation under s 31. 42 Having properly instructed itself as to the obligation imposed on the State by the Act, the Tribunal stated that if the State's negotiating position had remained as forecast in its correspondence, there may have been a question whether it had negotiated in good faith. Indeed, it may be said that the answer to that question would have to be that it had not. 43 Counsel for the State submitted to the Tribunal that the obligation imposed on the State by s 31(1) was discharged if the State refused to negotiate on other than a "tenement by tenement" basis when ascertaining whether an agreement could be reached for the grant of each tenement. It was not submitted by counsel that the State had not so restricted its conduct in negotiations. 44 Despite the terms of the State's correspondence in the course of negotiation, and the submissions of counsel to the Tribunal, the Tribunal found that the State had not limited the conduct of negotiations to consideration of the effect of the grant of each tenement in isolation. 45 The Tribunal noted that discussions in which the State participated in the course of negotiations were substantially wider than issues relating to any single tenement and it recited the material it relied upon for that conclusion: "The [State] did not negotiate only by reference to each tenement separately or in isolation. It agreed to batch the proposed mining leases (and others) for the purposes of negotiation and acceded to Anaconda's request to appoint one case manager to deal with all matters. It was also prepared to talk about concerns relating to native title rights and interests even though they did not relate to the area inside the tenement boundaries (DME facsimile to ALS dated 29 April 1998). Some of the discussions clearly related to issues which went beyond the individual tenements, namely the proposals relating to the transfer of Minara Station, land excisions in the vicinity of the project, the Cement Creek heritage issue, the training package and the environmental conditions." 46 The applicants, as they must, submitted that the Tribunal's finding was wholly unsupportable on the material before it. That submission cannot be accepted. There was some material on which the Tribunal could conclude that the conduct of the State in the course of the negotiations went beyond that which the State said it was prepared to do. A public body entrusted with a decision on the existence or non-existence of a fact does not commit an error of law on which a Court may act to set aside the decision, merely because the conclusion is just conceivable on the material provided to that body. (See: Puhlhofer v Hillingdon London Borough Council [1986] AC 484 per Lord Brightman at 518.) 47 In the present case, the Tribunal, cognisant of the proper interpretation of the Act to be applied to the relevant facts, determined that those facts included more than statements by the State as to how it would act in negotiations. There was material on which the Tribunal could decide that the State in its deed went beyond its words to the extent that it could not be said to have failed to have negotiated in good faith, as may have been the result if the State had acted as forecast in its statements. Accordingly, no order for review may be made on this ground.
In finding that the State negotiated in good faith, the Tribunal erred: (a) in failing to find that the State's conduct relating to negotiation of "compensation" demonstrated an absence of good faith. 48 It was submitted by the applicants that "compensation" was a matter about which the State was obliged to negotiate. The Tribunal accepted that the State had "a policy against the provision of royalty payments as compensation". Counsel for the State conceded that the State was obliged to negotiate in good faith about "compensation" and that refusal to so negotiate would mean absence of negotiation in good faith. However, it was submitted that negotiating about compensation but refusing to pay it would not mean negotiation had not been conducted in good faith. As counsel said, it was a "fine distinction". It was submitted by the State that although its position in the negotiations with the applicants was, "We are not going to pay compensation", such a statement did not amount to a refusal to negotiate. 49 Section 33 of the Act provides as follows: "33 Negotiations to include certain things Profits, income etc. (1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to: (a) the amount of profits made, or (b) any income derived; or (c) any things produced; by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done. Existing rights, interests and use (2) Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account: (a) existing non-native title rights and interests in relation to the land or waters concerned;

(b) existing use of the land or waters concerned by persons other than native title parties;

(c) the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned." 50 Although not stated directly, the thrust of s 33 is that a grantee party and a Government may agree that a registered native title claimant is entitled to payment from a venture to be established by the grantee party by reason of an act of Government which grants to the grantee party a right to mine, or confers on the grantee party rights or interests, after compulsory acquisition by the State of native title rights and interests. The section suggests that the negotiation of an agreement with the applicants to the doing of an act by the State may have included a requirement that the State grant the mining leases on the condition that Anaconda make payments to the applicants, calculated by reference to profits, income or production of minerals. Such payments may have a compensatory aspect but they may represent more than that. They may be a beneficial interest in an enterprise conducted on land in which native title is claimed, with the intention that holders of such title receive a means of economic advancement related to their interest in the land. 51 It is an area of negotiation in which the role of the State could be significant, including, of course, the need for the State to agree to imposing the relevant condition on the grant of the mining lease. Furthermore, the Act is predicated upon the responsibility of Governments to redress the effects upon indigenous persons of dispossession of their lands, and negotiation in respect of the matters provided in s 33 of the Act is directed to that end. The State would be obliged to receive, and consider, such a proposal and to assess what response should be made thereto. No doubt the views of Anaconda would be sought and considered. 52 In s 38(2), under the sub-heading "Profit-sharing conditions not to be determined", the Tribunal is instructed that matters for negotiation described in s 33 are not matters able to be made the subject of a condition as part of a determination made by the Tribunal under s 38(1)(c). It is, therefore, a matter to be dealt with by an accord reached between the parties in negotiation, or not at all. Such a provision elevates the requirement that the State, as the party able to impose such a condition, engage in genuine discussion on that issue. 53 A matter on which a registered native title claimant is entitled to negotiate, provided for in s 33, is not to be confused with the entitlement of a native title holder set out in s 23 of the Act to compensation for the doing of a permissible future act. 54 If the State had a policy that it would not reach an accord with a registered native title claimant to facilitate an agreement with a grantee party for the making of payments described in s 33, and that policy were applied to control the participation of the State in negotiations prescribed in s 31(1)(b), it may be said that the State would not be negotiating in good faith with the native title party. 55 If, in negotiations with native title parties for the obtaining of the agreement of those parties to the grant of a mining lease, the State maintained an inflexible position that it "would not pay compensation" and relied upon that position to decline to engage in negotiations in respect of matters provided for in s 33, it may be said that the State would not be participating in negotiations in good faith. The State is not obliged to reach agreement on such a matter but it is required to receive, and consider, a proposal from a registered native title claimant in a manner that has regard to the particular facts of the case and to the merit of the proposal in all the circumstances. 56 In the present case it appears that the State, whilst professing that it would not pay "compensation", accepted that the applicants and Anaconda may negotiate for the imposition of the condition contemplated under s 33, and that the State had not indicated that it would not include, as a condition on the grant of a mining lease, a condition that Anaconda make payments to the applicants in the terms of any accord those parties reached to that effect. 57 The Tribunal said that the State's approach to this matter was "to transfer the responsibility" to Anaconda. The material before the Tribunal may have been capable of suggesting that the State had restricted the scope of matters available for negotiation and that it had laid down that it would not negotiate on matters other than those nominated by it, but if the Tribunal accepted, as it appeared to do, that the State would not refuse to implement, by imposing it as a condition on a future act, any agreement negotiated by the applicants and Anaconda for payments to be made by Anaconda, the finding by the Tribunal that failure to negotiate in good faith was not revealed by that material, was an available finding and was not a finding grounded on a misapprehension of the relevant law. (b) In failing to find that conduct of the State in relation to implementation of the Memorandum of Understanding demonstrated an absence of good faith. 58 Under the MOU it was agreed between the applicants and Anaconda that the steps to be taken in return for the consent of the applicants to the grant of mining leases would include the transfer from Anaconda to the applicants of a pastoral lease, and excision of land from other mining leases for the benefit of native title parties. 59 It was submitted that the State did not participate wholeheartedly in facilitating the effectuation of the terms agreed by the applicants and Anaconda under the MOU where the consent, or action, of the State was required to bring that about. These were matters of degree to be considered by the Tribunal when it determined whether the State had negotiated in good faith. It was not necessary for the Tribunal to deal in its reasons with specific evidence on this aspect. It was part of the panoply of conduct the Tribunal had to review and form a view upon. In any event there was sufficient material to show that although the State had not led the charge in bringing the matters agreed between the applicants and Anaconda to fruition, it had indicated which of its departments were to be consulted and how the issues should be presented to those departments for consideration. No ground for review of the Tribunal's decision is demonstrated by that material. c) In failing to find that delay by the State in the course of negotiations had demonstrated absence of good faith. 60 The State conceded that there had been delay on its part in the course of negotiations. The Tribunal found that there had been "considerable delays", by the State, "more than would be expected in negotiations of this kind". The Tribunal determined that the tardiness exhibited by the State was explicable by reasons other than absence of good faith in the conduct of the negotiations. 61 The applicants submit that the Tribunal misunderstood the extent of the delay indulged in by the State by failing to find that the negotiation period commenced when the original s 29 notices were sent in respect of three of the proposed mining leases, in July 1996 and October 1996, and not when the "fresh" notices were sent in January 1997 and February 1997. The Tribunal took the view that irrespective of the initial delay by the State, in the end, most matters raised for negotiation by the applicants were addressed in negotiation, although no agreement had resulted. In particular, the Tribunal noted that the period of negotiation extended well beyond the period of six months contemplated as adequate in s 35 of the Act, partly because of delay by the State, but such delay had not been a tactic used to exhaust the period referred to in s 35 without engaging in negotiations before making an application to the Tribunal under that section. The Tribunal was satisfied that the State had participated in negotiations for a reasonable period and that the time lost by delay occurring outside that period did not signify a lack of participation in negotiations in good faith. 62 Equally, in relation to this ground as with other grounds of like import, there is evidence on which the Tribunal could reach the conclusion it did and on the material before the Tribunal it was not bound to reach a contrary conclusion. The Tribunal was well aware that inordinate, or unnecessary, delay on the part of the State could presage a lack of good faith in the conduct of the State, and that knowledge instructed the Tribunal in its assessment of the material before it. 63 The Tribunal saw the State's approach to the task of negotiation as lacking energy and enthusiasm and stated that there were elements in which the State's "negotiating behaviour" could have been improved. However, when the whole of the State's conduct was considered, the Tribunal was satisfied that a genuine attempt had been made by the State to negotiate an agreement to the doing of an act by the State. 64 Whether the Tribunal could have formed a contrary view on the material is of no moment in an application for review of the Tribunal's decision. (d) In failing to find that conduct of the State in relation to negotiation of proposals for environmental and heritage issues demonstrated absence of good faith. 65 In the negotiation process the applicants raised a number of environmental and heritage issues in respect of which they sought the imposition of conditions on the grant of the mining leases. The response of the State was that the protection provided by legislation then in force was adequate and no specific conditions were required. 66 It is not in issue that the proposals were appropriate matters for negotiation. The thrust of the submission in support of this ground was that the State had refused to negotiate about these issues. The Tribunal found that different points of view emerged from the discussions and the State was not obliged to alter its view to be shown to be negotiating in good faith. 67 Given the extensive discussion by the Tribunal earlier in its reasons of the requirements of negotiation in good faith, it should be accepted that the Tribunal was aware of the distinction between a party not being persuaded to alter its view and not being prepared to engage in negotiation at all by refusing to receive, or consider, proposals on which a compromise may be based. 68 The Tribunal was satisfied that the conduct of the State was in the first category. Again, it was a finding of fact open to the Tribunal on the material and no error by the Tribunal was demonstrated.

Summary 69 Once it is accepted that the Tribunal correctly understood and applied the law, the applicants must show that the Tribunal failed to make the only decision permitted on the material before it. The applicants' submissions identify material on which the Tribunal may have made a contrary decision but that falls short of establishing the existence of a ground for review.

70 The application must be dismissed. I will receive submissions in respect of costs.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Counsel for the Applicants: R I Viner QC P N Tolcon

Solicitors for the Applicants: Messrs Mony de Kerloy

Counsel for the First Respondent: S J Wright

Solicitors for the First Respondent: Crown Solicitor for the State of Western Australia

Counsel for the Second Respondent: C J L Pullin QC K J Green

Solicitors for the Second Respondent: Huston Partners

Dates of Hearing: 22, 23 March 1999

Date of Judgment: 19 August 1999

Native Title Amendment Act 1998(Cth)

At a glance

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Before

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Judgment (20 paragraphs)

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Legislation Cited (4)

Cases Cited (8)

Cited By (6)