Charles, on behalf of Mount Jowlaenga Polygon #2 v Sheffield Resources Limited

Grounds of appeal 32 The first ground is to the effect that the Tribunal erred at law in not finding that the grantee party continued to labour under a good faith negotiation obligation at all material times, including following the making of the s 35 application, when it approached the individuals comprising the native title party in the manner that it did with a view to obtaining the agreement of the native title party to the doing of the act. The native title party says the Tribunal Member should have found that that conduct was not in good faith and so the s 35 application should not have been determined. 33 The second ground is that, in any event, the Tribunal, having earlier stated at [179] that the post-s 35 application conduct in approaching the individual members of the native title party could have evidentiary value in assessing whether the pre-s 35 application conduct disclosed a failure to negotiate in good faith, then erred at law when it failed to make the required assessment by reference to the post-s 35 application conduct it had identified. 34 The third ground of appeal raises the question whether the Tribunal was obliged as a matter of law to take into account the grantee party's "persistent conduct", at the time when the s 35 application was before the Tribunal, in continuing to directly contact or seek to directly contact members of the native title party, as a relevant consideration when seeking to determine whether the grantee party's conduct satisfied its obligation to negotiate in good faith. It is said that the Tribunal erred in law when it failed to consider any of the direct approaches by the grantee party to members of the native party in respect of negotiations that had occurred, and when notified to the Tribunal by the native title party during the s 35 application proceeding, despite having expressly indicated that the Tribunal would so consider the matter. This ground is related to, but also distinct from, ground 2.

Did the Tribunal err in failing to find that the grantee party was required to continue negotiations in good faith after lodging its s 35 application? 35 The native title party says the first question, raised by s 35(3), is whether the obligation to "negotiate in good faith" at s 3l(l)(b) of the NTA attaches to any "negotiations" that a "negotiation party" chooses to conduct with another "negotiation party" after making a s 35 application. 36 It notes, by reference to the Preamble and the objects of the NTA in s 3(a) and (b) that the right to negotiate is a primary element of the protection of native title. 37 It says the terms of the Preamble are reflected in s 31(1)(b) in that the provision requires an agreement to be negotiated in good faith, which obligation applies to negotiations both before or after a s 35 application. It says the requirement of good faith is not conditioned by the interplay between negotiations and the s 35 arbitral system. 38 The native title party notes that the beneficial nature of the obligation to negotiate in good faith and its recognition as a main object of the NTA means the obligation "is not to be narrowly construed": FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 at [18]; [2009] FCAFC 49 citing Smith on behalf of the Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442 at [23]; [2001] FCA 19. The native title party emphasises that the Full Court in FMG, at [18], acknowledged that "the need genuinely to negotiate in relation to a prospective agreement was critical". 39 It also says that the phrase "negotiate in good faith" is to be construed in its natural and ordinary meaning and in the context of the NTA as a whole: Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 at 319; and FMG at [19]. 40 Relying on what was said by Sumner DP in Western Australia v Taylor (1996) 134 FLR 211 at 219 (Njamal), the native title party emphasises that negotiation involves "communicating, having discussions of conferring with a view to reaching an agreement". It further observes that good faith requires parties to meet an objective standard: negotiating conduct may be so unreasonable that a party could not be said to be sincere or genuine in its desire to reach agreement. See Brownley v Western Australia (No 1) (1999) 95 FCR 152 at [33]; [1999] FCA 1139. 41 The native title party acknowledges that s 36(2) places an evidential burden on the party alleging a lack of good faith in negotiations. It says it relies on the direct contact by the grantee party in breach of: (1) the negotiation protocol; and (2) the obligations of the grantee party's lawyers to engage with the native title party's lawyers, not their clients, as evidencing an absence of good faith. It says that it accepts the requirement of good faith is directed to the quality of a party's conduct assessed by reference to what a party has done or failed to do during negotiations, and is concerned with a party's state of mind as manifested by its conduct in the negotiations. 42 The native title party says that were a negotiating party by direct contact lawfully able to undermine, question, contradict, or seek to undermine, question or contradict: (1) the conduct of a native title party's representatives; (2) the state of negotiations between the appointed representatives of the parties; or (3) the agreed process under negotiation protocols to which that party has expressly agreed, then it would render the obligation of good faith in s 31(1)(b) entirely empty. 43 The native title party says that the NTA, by s 35, anticipates that the parties must negotiate for, at least, a statutory six-month period, during which the obligation of good faith applies. If they cannot reach an agreement, and the doing of the future act is pursued, the matter may then be resolved by an application under s 35. It refers to FMG at [21]. 44 It contends the emphasis on s 35 as the provision governing the movement from negotiation to an arbitral process must not be understood as one-dimensional, because s 35 provides, at s 35(3), that negotiations may continue despite the decision to file a s 35 application. 45 It contends - and says this is an important point of statutory construction - that s 35(3) makes it clear that pending determination of a s 35 application, the parties remain "negotiation parties" and "may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b)". Section 35(3) anticipates that negotiations under s 35(3) may lead to an "agreement of the kind mentioned in paragraph 31(1)(b)" and if such an agreement is made prior to determination of the s 35 application, then the s 35 application is taken to be "withdrawn". 46 The native title party says that s 35 identifies two parallel processes: (1) the arbitral process at s 35(1) leading to a determination under s 36A or s 38 of the NTA, and (2) an optional continuation of negotiations under s 35(3) conditioned by the obligation of good faith, "with a view to obtaining an agreement of the kind mentioned in paragraph 31(l) (b)". 47 It says that the second proposition in the preceding paragraph emerges because an "agreement of the kind mentioned in paragraph 31(1)(b)", consistently with the NTA's Preamble, cannot be lawfully made in an absence of "good faith". It notes that Sumner DP in South Blackwater Coal Ltd [2001] NNTTA 23 said that the right to negotiate provisions falls into two distinct stages, that is, negotiations and arbitration, but says that statement must be subject to the express terms of s 35(3), which acknowledges two different and overlapping processes. 48 The native title party contends that the failure to meet the requirement of good faith during negotiations under the NTA prohibits determination of a s 35 application because, by s 36(2), that requirement conditions the Tribunal's power to make a determination. Referring to FMG at [11], it also notes that "The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party". 49 The native title party says the construction of s 35(3) for which it contends is supported by s 35(1). One of the conditions for making a s 35 application is that "no agreement of the kind mentioned in paragraph 31(1)(b)" has been made. 50 It says that an agreement made during the period mentioned at s 35(1)(a) is an "agreement of the kind mentioned in paragraph 31(1)(b)", and conditioned by good faith. The same language in s 35(3) refers to a post-s 35 application agreement. The same type of agreement requires good faith. Were a different constructional choice to be made, a party, having met the good faith requirement for the minimum period, could then make a s 35 application and, at the same time, negotiate under s 35(3) but not be bound by the requirement of good faith. 51 It says that the notion that a grantee party can seek to obtain either: (1) an agreement by negotiations under s 35(3) tainted by an absence of good faith; or (2) a Tribunal determination that the good faith requirement has been met despite such negotiations, is not supported by the structure of the NTA or its "contextual provisions". Such a construction is also inconsistent with the principles described in FMG at [26]-[27]. 52 It therefore contends the "parallel processes" available under s 35 (if engaged) are not mutually exclusive. They operate concurrently and are resolved either: (1) when "an agreement of the kind mentioned in paragraph 3l(l)(b)" is reached and the s 35 application is withdrawn; or (2) the negotiating parties decide not to pursue negotiations or cannot reach "an agreement of the kind mentioned in paragraph 31(1)(b) ", and the s 35 application process is determined under either s 36A or s 38. 53 The native title party submits that this account of s 35 is consistent with the contextual provisions. (1) Section 34 provides that "an agreement of the kind mentioned in paragraph 31(1)(b)" takes effect only if it is made prior to a determination under s 36A or 38 (accepts the possibility that such an agreement can be made at any time prior to such a determination, including post-s 35 application). (2) Section 37 anticipates only three possible outcomes to negotiations either: (1) "an agreement of the kind mentioned in paragraph 3l(1)(b)" (see s 37(a)); (2) a Ministerial determination per s 36A (see s 37(b)); or (3) a determination of the s 35 application under s 38 of the NTA. (3) There is no provision in the NTA for any negotiated agreement not being "an agreement of the kind mentioned in paragraph 31(1)(b)", that is, an agreement not the subject of a good faith obligation. 54 The native title party submits that the Tribunal erred when it found, at [195], that if the grantee party chose to negotiate after the s 35 application had been made, it was not bound by the obligation of good faith. 55 It says it is clear from [195]-[196] that had the Tribunal not considered itself bound by the proposition that s 35(3) negotiations are not subject to an obligation of good faith, it was likely that it would have made an adverse finding against the grantee party. 56 Further, the native title party contends, the passage cited from South Blackwater rolls up two different issues: (1) whether there is an obligation to negotiate after the making of a s 35 application [s 35(3)], and (2) if voluntary negotiations are conducted pursuant to s 35(3), whether they are subject to the obligation of good faith. Indeed in South Blackwater, at [10], DP Sumner specifically cites the Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 (No 2) (Cth) whereby s 35(3) was inserted in 1998 (after the decision in Walley v Western Australia (1996) 67 FCR 366): This amendment to section 35 in the Bill makes it clear that negotiations for acts covered by the right to negotiate may continue even after one of the parties has applied to the arbitral body for a determination. The fact that negotiations are continuing should not delay the determination by the arbitral body. The parties are free to reach an agreement until such time as a determination is made under sections 34A, 36A or 38 in the Bill. 57 The native title party submits that s 35(3) allows the parties, if they wish, to continue negotiating after a s 35 application has been made. It seeks to illustrate its primary propositions as to the construction of s 35(3) by asking what it considers to be difficult questions. Were the native title party's first ground to fail, when does the obligation of good faith cease? If the obligation ceases, does it cease when the s 35 application was lodged (24 October 2016); when the Tribunal accepted the s 35 application (1 November 2016); or when the s 31(3) mediation was terminated (2 November 2016)? When does direct contact in breach of the negotiation protocol and professional obligation become permissible? 58 In South Blackwater, DP Sumner found at [10] that if Parliament wished to extend the obligation to negotiate post-s 35 application, it would have made it clear that "the negotiation parties must continue to negotiate in good faith with a view to obtaining an agreement". The native title party accepts there is no such obligation, but says if negotiations continue, then were they not conditioned by good faith, Parliament would have said so. The native title party submits that it is the latter proposition that Member Sumner failed to engage. 59 It submits that Sumner DP's conclusion that: In my view the scheme of the NTA is that negotiations in good faith must occur before (but not after) the s 35 application is made. The reference in Walley to 'the next stage' of the right to negotiate procedure being arbitration supports my conclusion, engages whether there is any obligation to negotiate after a s 35 application has been made, not whether any such negotiations are subject to the requirement of good faith. Such negotiations are authorised by s 35(3). It asks why would the NTA distinguish between pre- and post-s 35 application negotiations. The terms of the Supplementary Explanatory Memorandum do not draw such a distinction. Indeed the Memorandum refers to the pre-s 35 application negotiations as "continuing" after a s 35 application. 60 The native title party contends that the Tribunal misunderstood the significance of South Blackwater and went on to misapply it at [195]. In South Blackwater, Sumner DP found that the obligation to negotiate ceases after a s 35 application has been "made". The native title party agrees that there is no obligation on a grantee party to continue to negotiate after a s 35 application has been made, but it can choose to do so if it wishes. This, it says, is not a hindrance because the arbitral process under s 35(1) must be completed, under s 36, as soon as practicable or resolved by a s 36A Ministerial determination if there is delay. Any concurrent negotiations remain under the control of the parties. 61 It further submits that Sumner DP in South Blackwater did not find that, where a party chooses to continue to negotiate after a s 35 application has been filed, it is not obliged to do so in good faith. Whilst the obligation to negotiate comes to an end, the quality of any negotiations voluntarily entered into remain subject to the obligation of good faith. 62 The native title party notes that the Tribunal at [195] also referred to Walley. It notes that Walley was decided before the addition of s 35(3) in 1998. In Walley, Carr J at 375 dealt with a "short construction point" concerning a differently drafted s 35. The question was whether "no such agreement" in the then s 35 meant "no agreement arising out of good faith negotiations". His Honour concluded, at 375, that: ... to identify the agreement referred to as 'such agreement' in s 35 one tracks back through s 34 to s 31(1)(b). The agreement is defined in terms of what it permits not in terms of how it was reached. 63 The native title party contends the amended form of the NTA makes it clear: (1) that the nature of an agreement under s 35(3) is identical to an agreement under s 31(l)(b); (2) an essential quality of such an agreement is that it was made in good faith; and (3) a negotiated agreement to authorise a future act can only be achieved subject to the obligation of good faith. 64 It submits that absent good faith negotiations there is no power in the Tribunal to make a s 38 determination, and that it would be perverse if, having negotiated in good faith for the statutory period, a party could then secure an agreement under s 35(3) that resulted in the withdrawal of the s 35 application despite it being reached by "deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct". 65 The grantee party and the Government party agree about the way in which s 35(3) of the NTA should be construed. 66 Each says that the approach taken by the Tribunal in this case, and in earlier cases such as South Blackwater, is plainly correct and that the obligation to negotiate in good faith under s 31(1)(b) comes to an end upon the making of a s 35 application. The point they make is that in assessing whether a party has negotiated in good faith, the Tribunal is only assessing pre-s 35 application negotiating conduct, and while conduct after the making of the s 35 application may particularly be taken into account in making that assessment, that is the only use to which evidence of post-application conduct can be put. 67 In that regard, the Government party notes that in South Blackwater, Sumner DP used the post-s 35 application conduct to support a finding that there were negotiations in good faith before the s 35 application was made. 68 If the Tribunal were obliged, in effect, to consider any continuing negotiation conduct following the making of a s 35 application and determine whether that conduct alone was not in good faith, these parties contend that what is presently a reasonably simple, time limited task of determining whether the pre-condition to the making of a s 35 determination has been met, would be converted into a "rolling, uncertain process" (as described in the written submissions of the Government party). 69 Reference in this regard is made to what was said by Sosso DP in Cox v Western Australia (2008) 219 FLR 72; [2008] NNTA 90, where the proposition that subsequent conduct could be used alone to show an absence of good faith was rejected (at [31]): As was stated in Cameron v Hoolihan [2005] NNTTA 84; (2005) 196 FLR 37 at 47/[38]: 'The charter of the Tribunal is to look back in history and reach a conclusion on the facts presented. It would be inconsistent with this task, and unhelpful, if the Tribunal were to be presented with a running commentary on contemporaneous negotiations.' In this matter despite the grantee party lodging a Form 5 it has continued to negotiate with both native title parties. The task of the Tribunal is to evaluate the status of the negotiations between the parties as they stood at 23 November 2007 not as they stand when this decision is delivered. The negotiation parties are at liberty to continue to negotiate even though a Form 5 has been lodged, and the Act is drafted to recognise this fact (s.37(a)) and to facilitate it by the Tribunal convening, when requested, section 150 conferences to aid the parties to reach an accord. The decision of the grantee party to continue negotiations after making the request for arbitration is not material to the question of whether it had negotiated in good faith prior to lodging the Form 5. 70 The essence of the submissions made by the grantee party and the Government party is that s 35(3) merely empowers parties to continue negotiations after the making of a s 35 application if they wish, in circumstances where, in its absence, there may be some doubt as to the effect that an agreement reached after the making of a s 35 application might have. 71 The grantee party contends that the native title party relies upon a misconstruction of s 31(1)(b), which is important to appreciate when construing s 35(3). The grantee party says that s 31(1)(b) contains two elements: the first is a process - that parties must negotiate in good faith with a view to reaching an outcome; and the second is an outcome - an agreement that the future act be done, or may be done subject to conditions, or must not be done. It says some references in the NTA to s 31(1) are to the process element and others are to the outcome element. It says there is nothing in s 31(1)(b) or the NTA generally which says or implies that the outcome can only arise from the s 31(1)(b) process, that is, good faith negotiations under that provision. In this regard, the grantee party relies on what Carr J said in Walley at 375. 72 The grantee party says that s 36(2), in providing that the Tribunal must not make a determination if the grantee party or Government party did not negotiate in good faith, refers to the process element and requires the Tribunal to satisfy itself that the relevant party did negotiate in good faith. That negotiation, it says, should be construed as referring to negotiations prior to the making of the s 35 application. 73 The first reason for coming to this conclusion, submits the grantee party, is that s 36(2) is expressed in the past tense, and the question posed should be capable of being answered by reference to a discrete and ascertainable set of facts. If the process requirement has ongoing application after a s 35 application is made, the Tribunal would need to be constantly assessing whether it has the power to make a future act determination, right up until the point that it actually makes it. 74 The second reason advanced by the grantee party for this construction is that s 35(3) provides that even though a s 35 application has been made, the parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in s 31(1)(b) before a future act determination is made by the Tribunal. It notes that if such an agreement is made, the s 35 application is taken to have been withdrawn. The grantee party submits the reference in s 35(3) to s 31(1)(b) is a reference to the outcome element of s 31(1)(b). It does not refer to the first element, being the process of negotiation in good faith. Thus, s 35(3) does not by its terms require negotiations to be in good faith. Nor does it require any further negotiations at all. It uses the word "may", which should be compared with the word "must" in s 31(1)(b). 75 The grantee party contends that if negotiations of the kind referred to in s 35(3) were a continuation of the obligation to negotiate in good faith, then that would include an obligation on the grantee party to do things such as make reasonable offers, respond to offers from the native party and so on. In other words, engagement in further negotiation would, or at least could, depending on the conduct of the party, be mandatory. 76 It also suggests that this would permit a grantee party, who had failed to negotiate in good faith earlier, to lodge the s 35 application and seek to satisfy the good faith requirement during that period. The Tribunal would be obliged to conduct the arbitration inquiry and prepare a future act determination because it could not conclude that it lacked power to do so right up to the point when it was ready to make the future act determination. It says any such construction does not conform with the note to s 36(2), which says that it would be possible for a further s 35 application to be made. 77 The grantee party advances a third reason why the native title party's construction should not be adopted, in that it says it is not consistent with observations by the Full Court in FMG where, at [19], it said that the act of lodging the s 35 application, taken alone, cannot be relied upon in order to establish bad faith, and that if negotiations reach a stand-off, notwithstanding attempts in good faith to negotiate within the relevant six month period, there are no further obligations after the completion of the six month period on a party which wishes to lodge a notice under s 35 of the NTA. 78 For my part, I consider that the conventional understanding depicted in such decisions as South Blackwater, as to the obligation on a Government party or grantee party to negotiate in good faith if negotiations are continued after the making of a s 35 application, is correct. 79 That is not to say, however, that the answer to the question raised by the native title party in this proceeding is easily supplied, for it is not. 80 The proposition that, following the making of a s 35 application, the Government party or a grantee party may, in a sense, actively seek to negotiate otherwise than in good faith would, one would think, be an anathema given the text of the Preamble and the general objects of the NTA set out above, not to mention s 31(1)(b) itself. Every indication in the NTA points towards "good faith" being a constant requirement in all dealings under the NTA. 81 However, that broad reflection cannot of itself dictate the manner in which s 35(3) of the NTA should be construed. The point can be made very quickly, and should be, that if any government or grantee party continues negotiations with a native title party with a view to obtaining an agreement following the making of a s 35 application, and behaved badly, as it were, and demonstrated bad faith in doing so, it may be that conduct may well be relied on to inform a decision by the arbitral body, for the purposes of s 36(2), that the earlier negotiations had in fact been conducted otherwise than in good faith. 82 One would also have thought that any Government party and, perhaps more particularly, any grantee party, who thought they could behave badly when continuing negotiations, after making a s 35 application, would also appreciate that their good corporate citizen standing in the native title community more generally, would be greatly tarnished if they were to so behave and would affect any future negotiations that they may wish to conduct with a relevant native title party and, indeed, the preparedness of the Government party to do the proposed future act, or to do a similar act in their favour in the future. 83 Be that as it may, it seems to me, essentially for the reasons advanced on behalf of the grantee party and set out above, that the construction of s 35(3) contended by the Government party and the grantee party should be accepted having regard to a careful textual analysis of the key provisions, informed by a consideration of the effect of adopting the construction contended for by the native title party. Principally, s 36(2) appears to be drafted on the basis that the arbitral body will be considering whether the negotiations that preceded the making of the s 35 application met the good faith requirements set out in s 31(1)(b). This is particularly so because s 36(2) is not framed, on the face of it, with continuing negotiations in mind. This is reinforced, as the grantee party submits, by the past tense that s 36(2) uses. That is to say, if any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) "did not negotiate in good faith …" (emphasis supplied), the arbitral body must not make the determination on the application. 84 The further reasons advanced by the grantee party, while not as compelling as this first reason for construing the terms of s 35(3) in the manner for which the grantee party contends, also have force. There does appear to be a distinction drawn between a "process" element and an "outcome" element of s 31(1)(b). First, there is the obligation to negotiate in good faith. That indeed is the only obligation that s 31(1)(b) imposes. It does not require that an agreement be arrived at. It is an obligation to negotiate "with a view to obtaining the agreement" of the native title party. Section 35 thus provides a mechanism, where there has been a failure by those parties to reach an agreement - or in terms of s 31(1)(b), a failure "to obtain such an agreement" - within at least since six months since the notification day, for any negotiation party to apply to the arbitral body for a determination under s 38. Section 38 enables the arbitral body, indeed requires the arbitral body, either to make a determination that the act must not be done, or may be done, or may be done subject to conditions. 85 It is then, by s 36(2), that the question of the earlier good faith negotiations arises. If there have not been any, then by that subsection the arbitral body must not make a determination on the application. Where the arbitral body finds that the s 31(1)(b) obligation has not been satisfied, and so the s 35 application cannot be determined, s 36(2) notes that a further s 35 application can be made. This appears to presuppose that fresh negotiations are conducted for at least six months, in good faith. 86 When read as a legislative scheme, s 35(3) merely empowers the negotiation parties to "continue to negotiate with a view to obtaining an agreement of the kind mentioned in para 31(1)(b) before a determination in relation to the act is made …". There is no obligation on any party to continue negotiations. As I have said, if the parties proceed to continue to negotiate, one would expect them to do so in good faith. But, strictly speaking, there is no obligation on them to do so. If a grantee party, for example, refuses a request from a native title party to continue negotiations, they cannot be criticised for not doing so just as they cannot be criticised for making the s 35 application. The question will always be, from a grantee party's or a Government party's point of view, whether they can show they have, up to that point, negotiated in good faith. If they move too quickly from pre-s 35 application negotiations to a s 35 application, and then begin behaving badly then, as I have intimated, the arbitral body may well entertain real doubts that they ever engaged in good faith negotiations. 87 In broad terms, however, I accept that, if the good faith negotiation obligation continued in respect of the continuing negotiations, post a s 35 application, were of itself to be a reason why a determination could not be made, that could complicate what may otherwise reasonably be described as a discrete and simple process, and possibly muddy the process by which the arbitral body is to make or not make a determination on a s 35 application. A requirement, for example, for the arbitral body to consider aspects of conduct during the continuing negotiations right up until a determination is about to be made, could make the arbitral process unwieldy, to say the least. 88 In all the circumstances, I consider it is appropriate to rule that s 35(3), in authorising negotiation parties to continue to negotiate with a view to obtaining an agreement of the kind mentioned in s 31(1)(b), does not carry with it the express obligation, or the implied obligation, to negotiate in good faith. That is to say, if there are continuing negotiations which, on the face of it, are not conducted by a Government party or a grantee party in good faith, that conduct, of itself, will not require the arbitral body to not determine the application under s 36(2). It may, however, be conduct that the Tribunal can properly take into account in informing an assessment of whether negotiations conducted prior to the making of the s 35 application were conducted in good faith. 89 For these reasons, ground 1 of the appeal fails.

Did the Tribunal err by failing to assess the significance of the post-s 35 application conduct? 90 This question is intended to reflect the second ground of the native title party's appeal, which it says is couched in the alternative to ground 1 and raises the effect of a determination by a Tribunal to the effect that it considers particular matters relevant and will deal with them but then ultimately fails to do so. 91 The native title party submits the Tribunal failed to act upon the statement at [179], to follow the approach taken by Sumner DP and Member Shurven in South Blackwater and Pilbara Stone Pty Ltd/Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/Western Australia [2012] NNTA 114 respectively, as to the relevance of post-s 35 application conduct in a good faith inquiry. In Pilbara Stone, at [35], the Tribunal said: the approach I will take in this matter is to rely on the detailed information and documentation in front of me relating to negotiations up to lodgement of the FADA application, and then to take into account any matters that may be relevant to those pre-FADA application negotiations which arise following the lodgement of the FADA application, but only in the pre-FADA context. 92 The native title party submits that this required the Tribunal to consider the relevance of post-s 35 application direct contact as part of a pattern of conduct, but it did not. 93 The native title party says that it identified post-s 35 application conduct by the grantee party that it said was relevant to good faith, including whether it was part of a pattern when seen in the context of pre­s 35 application conduct. The native title party says that it particularised this conduct at contention 3(4) - Annexure 'A' to the Applicant's Statement of Contentions dated 22 December 2016, including the evidence of Mr Nathan Lenard, Mr Preston Manado; Ms Rosemary Nunju, and Mr Jerome Manado. The Tribunal's approach, it says, by asking 18 questions ignored the ambit of these contentions. That pattern, it contended, included the grantee party's view that the native title party's representatives could not adequately represent it. The Tribunal also failed to consider or refer to some pre-s 35 application conduct. It refers to the affidavit of Rosemary Nunju, affirmed 7 December 2016 at [13] and [14] in this regard. The native title party submits the Tribunal referred to uncontradicted post­s 35 application evidence put on by it but failed to consider the evidence in the context of a pattern of conduct; for example, conversations with Mr Lenard and Mr P Manado on 26 and 27 October 2016: [177]-[179], [181]-[182]. 94 The native title party says that the Tribunal evaluated only some of the evidence relevant to direct contact, for example at [190]-[193]. 95 The native title party further contends that evidence that the Tribunal failed to take into account on the question of good faith included that mentioned at [194], of namely, the grantee party writing directly to the individuals comprising the native title party without notice to their representatives in breach of the negotiation protocol seeking to negotiate directly with them. Of this, the Tribunal found, at [196], that: It appears clear that the purpose of this communication was to advance negotiations by circumventing Mount Jowlaenga's legal advisors which is not acceptable', [and] 'Had Sheffield's contact occurred prior to the lodgement of the s 35 application my findings may have been different. 96 The native title party submits therefore that the later determination was made without considering the approach adopted at [179]. 97 The grantee party, but not the Government party, makes submissions concerning ground 2. 98 The grantee party, in effect, submits that there is a question whether the Tribunal was bound to take into account the conduct which is said to establish a discernible pattern of seeking to directly negotiate with the persons who comprise the native title party, rather than through KRED, its legal representative. 99 The grantee party says the issue arose before the Tribunal in the context of a contention by the native title party that the grantee party made "repeated attempts … to engage with individual Named Applicants and other Traditional Owners directly regarding the negotiations (without reference to their legal representatives, and without those representatives being present) thus seeking to improperly directly negotiate with such Traditional Owners". The particulars of that allegation, it says, referred generically to approaches to various persons, and to the grantee party's letter dated 26 October 2016. 100 The grantee party says the Tribunal's reasons identified seven instances of alleged direct approaches by the grantee party to the native title party. These are discussed by the Tribunal in the context of two specific issues: first, did the grantee party make unfounded allegations of misconduct?; second, did the grantee party engage directly with individuals who make up the native title party and other traditional owners? 101 In relation to what it calls "incidents" of such alleged conduct, the grantee party makes the following submissions: The first incident occurred on 24 June 2015, well before the s 35 application. This concerned a comment by the grantee party employee that he would make contact shortly with some of the registered native title claimants by phone. The legal representative of the native title party emailed the grantee party to say that should not happen, and the grantee party agreed. This is discussed by the Tribunal at [188]-[189] of its reasons in the context of the direct contact issue. The Tribunal concluded that this was representative of good faith behaviour by the grantee party. The second incident occurred on 30 August 2016, prior to the s 35 application. Ms Pervan of the grantee party spoke to Mr J Manado at a community information stand set up by the grantee party in Broome on 30 August 2016. There was a further discussion the next day on 31 August 2016. This is dealt with in the Tribunal's reasons at [176] and [180] in the context of the allegations of misconduct issue; and at [193] in the context of the direct contact issue. The Tribunal concluded, at [183]-[184] and [193] of its reasons, that, given the inconsistencies in the accounts and the breakdown in relationship between the parties for which blame could not be placed on either party, the Tribunal was not prepared to make an adverse finding against the grantee party. The third incident occurred on 31 August or 1 September 2016, before the s 35 application. Mr J Manado received a phone call from Mr Boyd, the grantee party's Exploration Manager, about arranging heritage monitors for a drilling program. He referred the caller to KRED. This is discussed by the Tribunal in its reasons at [190]-[193] in the context of the direct contact issue. The Tribunal concluded, at [193], that, considering the context of the call, the nature of the relationship between the parties and the intent behind the call, "I do not believe that Mr Boyd was seeking to undermine the negotiations when he contacted Mr J Manado". The fourth incident occurred on 1 September 2016, before the s 35 application. Mr J Manado received a phone call about the native title party's opportunities in the grantee party's project. He again referred the caller to KRED. This is discussed at [190] by the Tribunal in the context of the direct contact issue. No particular finding was made by the Tribunal, including who the caller may have been. The fifth incident occurred on 26 October 2016, after the s 35 application. It involved an allegation by Mr P Manado concerning comments made by two of the grantee party's employees. It is dealt with in the Tribunal's reasons at [178]-[179] in the context of the allegations of misconduct issue. The Tribunal's conclusion in relation to that incident, in the context of the allegations of misconduct issue, is at [184]. The sixth incident is the letter from the grantee party to the registered native title claimants dated 26 October 2016 (almost immediately after the s 35 application), referred to above, and is dealt with in the Tribunal's reasons at [194]-[196]. The Tribunal declined to make any adverse finding against the grantee party regarding negotiation in good faith because it occurred after the s 35 application, but, at [196], described it as "inappropriate" and "not acceptable". The seventh incident occurred on 27 October 2016, after the s 35 application. It involved Mr N Lenard receiving a phone call from Mr Groeneveld of the grantee party. It is dealt with in the Tribunal's reasons at [177], [179], [181] and [184] in the context of the allegations of misconduct issue. The Tribunal's conclusion in relation to that incident, in the context of this issue, is at [184]. 102 The grantee party says there is no finding by the Tribunal that the conduct after the s 35 application was lodged (the fifth, sixth and seventh incidents) demonstrated anything about the grantee party's conduct prior to the making of the s 35 application. The grantee party submits that nothing in the NTA required the Tribunal to make such a finding. All the Tribunal said on this issue, and in the previous cases referred to above, was that the Tribunal may take into account evidence of events after the s 35 application where it is relevant to pre-s 35 application conduct. It says the native title party did not identify before the Tribunal, and has not identified in this appeal: (1) an alleged "pattern of behaviour" by the grantee party before the s 35 application which, if established, would constitute or contribute to a finding that the grantee party did not negotiate in good faith; or (2) incidents after the s 35 application which could logically be relevant to establishing that there was such a pattern of behaviour which the Tribunal was required to consider. 103 The grantee party submits that each of the first four incidents (prior to the s 35 application) had their own circumstances, and was subject to particular findings by the Tribunal. They do not constitute a pattern of behaviour. 104 Nor do the last three incidents (after the s 35 application) constitute a pattern of behaviour in themselves, nor bear upon any previous behaviour of the grantee party. Two of the incidents (the fifth and seventh) did not concern attempts to negotiate directly with the individuals but were concerned with alleged unfounded allegations of misconduct. The sixth incident (the 26 October 2016 letter), by its very nature, was not something that could have occurred before the s 35 application. The purpose of the letter was to explain that the grantee party had made the s 35 application but that it still wanted to enter into an agreement with the native title party. The grantee party submits it cannot logically contribute one way or the other to any finding as to whether or why the grantee party directly contacted the registered native title claimants prior to the lodging of the s 35 application. That Tribunal decided not to make any adverse comment on that particular conduct, notwithstanding what is said in the first sentence of [195], which must be taken to mean it decided that the conduct was not relevant to any previous conduct. 105 The grantee party submits that insofar as ground 2 refers to a failure by the Tribunal to consider evidence or to consider the relevance of conduct after the s 35 application, the Tribunal's discussion at [177]-[179] and [194] expressly refers to conduct after the s 35 application. Hence it cannot be concluded that the Tribunal wrongly excluded such evidence from consideration. Similarly, at [195], the Tribunal referred back to its previous comments (at [179]) concerning the relevance of post-s 35 application conduct. Thus, it cannot be concluded that the Tribunal excluded, or overlooked, the possibility that conduct after the making of the s 35 application may be relevant. 106 The grantee party, as to ground 2, which refers to a failure to consider the evidence of Ms Rosemary Nunju, submits her affidavit (made 7 December 2016) is referred to by the Tribunal at [190] and [194], but its content is not discussed. The affidavit relevantly deposes to Ms Nunju having received the letter dated 26 October 2016, and as such forms part of the sixth incident referred to above. It says it is clear the Tribunal considered it as part of the sixth incident, given the references to it in [190] and [194]. The affidavit also refers to someone telling Ms Nunju that people from the grantee party were looking for her on 18 October 2016 (before the s 35 application). No contact was actually made, and the evidence did not disclose who "the grantee party mob" were, nor what they may have wanted to speak to Ms Nunju about. The Tribunal explained, at [6], that the fact certain matters are not discussed in the reasons "should not be assumed to mean that they were not considered or that they were not accepted. It simply means that in considering all of the material their specific mention was not itself determinative of good faith". Accordingly, the failure by the Tribunal to mention the 18 October 2016 incident (if it can even be called an incident) is not of any moment and does not support a finding that the Tribunal failed to take into account a relevant consideration. 107 The native title party effectively joins issue with the grantee party concerning its ground 2 contentions. 108 In reply, the native title party contends that presenting evidence of direct contact as a series of unrelated "incidents" is inaccurate and artificial. It submits the incidents of direct contact are directly related to a negotiation strategy adopted by the grantee party and discloses a "pattern" of conduct. 109 The native title party notes again that, at [179], the Tribunal said of the post-s 35 application conduct that it was "relevant" to his considerations. 110 The native title party re-emphasises that the Tribunal did not then consider its relevance, especially to the "pattern of behaviour" conduct. 111 As to the contact concerning Ms Nunju, the native title party says the Tribunal dealt with the affidavit evidence without making findings and failed to engage with the evidence. 112 It contends that the finding made at [179] obliged the Tribunal to consider all the evidence regarding direct contact, not just limited to the letters sent to the individuals, to determine whether it was relevant to the earlier negotiated conduct and demonstrated it was not in good faith. 113 In dealing with ground 2, I consider some preliminary observations should be made. While the grantee party makes reference to a question of principle, namely, whether the Tribunal was bound to take into account the post-s 35 application conduct, the fact of the matter is that the Tribunal plainly suggested, at [179], that it would do so in assessing the negotiating behaviour in the pre-s 35 application period. The ground 2 complaint is that having said it would do that, it did not do so. 114 In my view, if the Tribunal said it would make this assessment and then failed to do so, it may be said that the determination function that it undertook miscarried. Something identified by the Tribunal as potentially relevant to the determination that needed to be made would, thereby, not have been given any consideration. The question is, exactly what was it that the Tribunal considered and/or found in making its decision and did it actually fail to do what it said it would do? 115 At [3] of its reasons, the Tribunal said it needed to decide whether the grantee party did not negotiate in good faith. 116 At [5], the Tribunal noted how, following a preliminary conference to identify issues and to make directions, it received 180 pages of contentions, more than 400 pages of affidavits, and over 3,000 pages of annexures. 117 At [6], it noted that the material that was provided contained many comments regarding the behaviour and statements made by the native title party regarding the grantee party; and by the grantee party regarding the native title party. It said the fact that each of these comments and statements had not been specifically mentioned in the determination should not be assumed to mean that they were not considered or that they were not accepted. The Tribunal said it simply meant that in considering all of the material their specific mention was not itself determinative of good faith. This was not an unreasonable statement for the Tribunal to make in the circumstances identified, especially given the voluminous materials it had been given. But whether or not this statement should be applied to the issue identified in [179] is, however, another thing. 118 The Tribunal then proceeded to list all of the documents it had received. 119 At [13], the Tribunal listed the issues for the good faith question. They included item 12, "Did Sheffield engage directly with individual Named Applicants and Other TOs?"; and item 10, "Did Sheffield make 'unfounded allegations of misconduct'?". 120 In the course of dealing with item 10, the Tribunal dealt with evidence concerning direct dealings between Mr J Manado, a member of the native title party, and Ms Kim Pervan, a senior advisor at the grantee party, on 31 August 2016. It also referred to evidence of direct contact with Mr Lenard, another "named applicant" on 27 October 2016. It referred to a further affidavit of Mr P Manado concerning contact on 26 October 2016. Each of these latter two instances were immediately after the making of the s 35 application on 24 October 2016. 121 At [179], the Tribunal said it noted the conversations involving Mr Lenard and Mr P Manado were said to have occurred in the days following the lodgement of the s 35 application and then noted, by reference to Pilbara Stone, that the conduct after an application may be relevant to whether a party has negotiated in good faith before the application was made. Significantly, for present purposes, it said the Tribunal would take that same approach. 122 At [180], the Tribunal considered the affidavit material of Ms Pervan. 123 At [183], it accepted that unilateral conduct which harms the negotiating process may indicate a lack of good faith, but considered that Ms Pervan's affidavit provided quite a different and a far less inflammatory account of her conversation than Mr J Manado. The Tribunal was not prepared to make an adverse finding. This conduct was pre-s 35 application conduct. 124 At [184], the Tribunal acknowledged that the statements relied on by the native title party were made at a late stage in negotiations, "post the lodgement of the s 35 application in two instances". It said it was clear that by this point there was a complete breakdown in relations between the parties, although the evidence did suggest that statements were made that were not conducive to good faith requirements. However, the Tribunal said that it believed "this observation can be made against both parties …". Ultimately, the Tribunal found that the negotiations had irrevocably been derailed by that stage and it would not place blame for this state of affairs squarely on either party. 125 In relation to the item 12 question, whether the grantee party had engaged directly with individual "Named Applicants" etc., the Tribunal Member dealt with that question at [186] and following. 126 It regarded the affidavits of Mr P Manado, Mr Lenard, Mr J Manado and Ms Nunju. 127 It also regarded the affidavit of Mr Boyd, which it said sought to provide some context in the lead up to a particular conversation with Mr J Manado. 128 At [194], the Tribunal said the accounts of contact made in the other three affidavits largely related to contact made by the grantee party in the days following the lodgement of the s 35 application. It said that in each instance the grantee party sought to put their offer, as it stood at that time, directly to (certain) "Named Applicants". It noted that copies of the letters from the grantee party had been annexed to their affidavits and were identical in each instance. It noted that the grantee party said they had been attempting to negotiate with KRED but had been unable to "reach a conclusion". It noted that the letter said it "could find no further choice" but to lodge a s 35 application, but that this did "not mean we do not want to enter into an agreement …" and that "the very generous offer we made via KRED still stands". 129 At [195], as dealt with in ground 1 above, the Tribunal then found, by reference to South Blackwater, that in the post-s 35 application stage there is no obligation on the grantee party to negotiate in good faith. Thus, it said the Tribunal would not make an adverse finding against the grantee party on that point. 130 However, at [196], it said it would make it clear that this finding was made on a "relatively technical point" and should not detract from the "inappropriateness" of the behaviour. The Tribunal added: Had Sheffield's contact occurred prior to the lodgement of the s 35 application my findings may have been different. It appears clear that the purpose of this communication was to advance negotiations by circumventing Mount Jowlaenga's legal advisors which is not acceptable. 131 At first blush, consistent with the submissions made on behalf of the native title party, the Tribunal, at [195] and [196], seems not to have ruled on the question whether the post-s 35 application conduct impugned by the native title party should cause the Tribunal to construe the pre-application negotiation conduct to have been lacking in good faith. 132 However, I consider after some careful reflection, that it is not appropriate to attempt to construe the form of the reasons for decision of the Tribunal too painstakingly and to ignore what I consider to be the substance of the decision. 133 As I have pointed out, and as the grantee party submits, the Tribunal did deal with questions 10 and 12, and in question 12, specifically dealt with the post-application conduct involving the letters sent by the grantee party to the individuals who comprise the native title party. For various reasons given by the Tribunal in relation to the pre-application conduct, it was not satisfied, up to the point of the s 35 application, that there was any good faith lacking in the negotiations conducted by the grantee party. 134 Having regard to what the Tribunal said at [184] of its reasons, as referred to at [124] above, the Tribunal found there had been a complete breakdown in relations between the parties at a late stage in the negotiations at the time the s 35 application was lodged. 135 When one takes into account the finding made by the Tribunal at [196], as set out above, at [130], to the effect that had the grantee party's contact occurred prior to the lodgement of the s 35 application, the Tribunal's findings "may have been different", I draw from the observations, account of the evidence and findings generally made by the Tribunal, that the Tribunal was thereby concluding, and should be taken to have found, that the direct contact made after the making of the s 35 application did not influence the Tribunal to construe the pre-s 35 application conduct differently. 136 When the Tribunal said that if the impugned conduct had occurred prior to the lodgement of the s 35 application its findings "may have been different", I consider it should be taken to have meant that if the pre-s 35 application conduct had incurred evidence of such conduct then a different view may have been taken about whether or not good faith negotiations had occurred in that earlier period. But, as I have noted, the Tribunal also spoke about a complete breakdown in the relationship at material times and by the time that post-s 35 application impugned conduct occurred. 137 I do not consider, in the circumstances, the Tribunal can in fact be taken to have ignored the evidence and the purpose to which the native title party sought to put that evidence, or that the Tribunal failed to take the approach that it said it would take to that post-s 35 application conduct, at [179] of its reasons. 138 In my view, it should also reasonably be concluded that the other instances of post-s 35 application conduct that the native title party put before the Tribunal for the purpose of making the submission that it did were considered by the Tribunal not to be relevant to the pre-s 35 application negotiation conduct. What the Tribunal said, at [6] of its reasons, to the effect that if materials were not referred to in the reasons it should not be assumed that they have not been considered is material in this instance. Plainly, the most significant conduct relied on by the native title party was the grantee party's actions in sending the letters to the "Named Applicants" and endeavouring to contact them soon after it made the s 35 application. To the extent that Ms Nunju's evidence may not have been dealt with in any significant way is, in all those circumstances, not significant, in my view. 139 The result is that I think a fair reading of the Tribunal's reasons, which no doubt, especially in hindsight, could have been written with greater clarity concerning the Tribunal's application of the approach it identified in [179], does not reveal the legal error for which the native title party contends. 140 It follows that ground 2 fails.

Did the Tribunal err by failing to consider the incident of 7 March 2017? 141 As to the third question concerning continuing conduct, the native title party says that it picks up the significance of conduct alleged to breach the good faith obligation that occurs during the course of proceedings on the question of good faith, but at a time when the party making the application has already filed its case. The native title party complained of the grantee party's attempts to negotiate directly with the named individuals who make up the native title party during the proceedings. It is contended that such post-s 35 application conduct is also relevant to the determination of the question of good faith, a question that can be agitated at any time prior to a determination under s 36A or s 38 of the NTA. The Tribunal indicated it would consider the conduct complained of in this context and for that purpose. Despite this indication or direction that it would consider such continuing conduct in this context the Tribunal failed to do so. 142 The grantee party notes that ground 3 (except insofar as it is repetitive of grounds 1 and 2, as is expressly acknowledged in subparagraphs (a) and (b) of ground 3), focusses specifically on a further incident which occurred on 7 March 2017, at a time when the Tribunal had reserved its decision on the good faith issue. The grantee party sent an email to the legal representatives of the native title party attaching a letter of which the grantee party said "we are forwarding to the Mt Jowlaenga Named Applicants today to provide them with an update regarding native title matters at Thunderbird". 143 Concerning this issue, the grantee party notes: On 8 March 2017, the native title party's legal representatives wrote to the Tribunal enclosing a copy of this correspondence and saying, amongst other things: "The previous occasions upon which Sheffield engaged in making direct contact with members of the Named Applicant formed the basis of a central contention of the Native Title Party that Sheffield had not met its obligation to act in good faith within the meaning of s 31(1)(b) of the Act. The s 31(1)(b) issue is the sustained and repeated attempts by Sheffield to negotiate directly with the Named Applicants despite being well aware that the Named Applicants are represented and the terms of the Negotiation Protocol… The Native Title Party respectfully request that this conduct be taken into account in the good faith proceedings for which the Tribunal is currently reserved on its decision." The Tribunal sent an email to both parties dated 9 March 2017 in which it said: "Member McNamara has agreed to considering this information in the context of overall behaviour in determining the question of good faith". Thus, the grantee party submits, the asserted relevance of the 7 March 2017 letter was clear, and it cannot be concluded that the Tribunal excluded the evidence or refused to consider it. The obvious inference is that the Tribunal did not consider it relevant. The email from the Tribunal said only that the Tribunal would consider the information, not that the Tribunal accepted the conduct was a relevant consideration. The absence of reference to it in the Tribunal reasons is explained at [6] of its reasons: see [117] above. Furthermore, the grantee party submits, the correspondence is not relevant to pre-s 35 application conduct, and therefore was not something the Tribunal was obliged to take into account. This is for the same two reasons discussed above in the context of ground 2, that is, there was no pre-s 35 application course of conduct, and this correspondence could not logically affect any assessment as to whether there was such a course of conduct before the making of the s 35 application. In relation to that second point, the 7 March 2017 letter was of a different nature to the 26 October 2016 letter and each of the previous incidents. In its terms the 7 March 2017 letter was not an attempt to engage in negotiations. Although not addressed in the native title party's submissions, reference is made in ground 3(c) to s 162 of the NTA. Subsection 162(2) provides that the Tribunal must state in the determination any findings of fact upon which it is based. However the Tribunal did not make a factual finding about the 7 March 2017 letter and nor, for the above reasons, was it obliged to do so, that is, the Tribunal evidently did not consider it was relevant to the issue of whether the grantee party negotiated in good faith before making the s 35 application. That is a conclusion of law and not a matter which engages s 162. 144 As to the ground 3 question and the submissions of the grantee party about the letter sent to the Tribunal and the reply given, the native title party submits that it is clear from the Tribunal's reasons that it failed to conduct the exercise he described at [179]. 145 I do not consider that ground 3 is made out. For the reasons I have given in finding ground 2 fails, I also consider this ground fails. I consider the Tribunal should be taken to have considered that the 7 March 2017 letter was not significant to the question whether the pre-s 35 application negotiations were conducted otherwise than in good faith and so did not specifically refer to it.

Conclusion 146 I would then make the following order: (1) The appeal be dismissed. 147 I will hear from the parties on the question of costs. I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.