John William Withers, Hamish William Bergerson and Jillian Vilma Withers

Ewamian People Aboriginal Corporation RNTBC (QCD2013/007)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO MAKE THE DETERMINATION

Native title - future acts - s 35 application for determination - mining lease applications - power to make determination - whether grantee parties have negotiated in good faith - grantee parties have not negotiated in good faith - future act determination application dismissed

Mineral Resources Act 1989 (Qld) s 281 (MRA)

Native Title Act 1993 (Cth) ss 31, 148(a) (Native Title Act)

Barry Fisher & Ors on behalf of the Ewamian People #3 v State of Queensland & Ors [2013] FCA 1249 (Ewamian Determination)

Brownley v Western Australia [1999] FCA 1139; [1999] FCA 1139; (1999) 95 FCR 152 (Brownley)

Charles, on behalf of Mount Jowlaenga Polygon # 2 v Sheffield Resources Limited [2017] FCAFC 218; (2017) 257 FCR 29 (Sheffield)

FMG Pilbara Pty Ltd v Cox and Others [2009] FCAFC 49; [2009] FCAFC 49; (2009) 175 FCR 141 (Cox)

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (Gomeroi)

John William Withers and Others v Ewamian People Aboriginal Corporation RNTBC and Another [2023] NNTTA 34 (2023 decision)

Kevin Alfred De Roma v Western Yalanji Aboriginal Corporation RNTBC and Another [2022] NNTTA 40 (De Roma)

Placer (Granny Smith) Pty Ltd & Ors v Western Australia & Ors [1999] NNTTA 361; (1999) 163 FLR 87 (Placer (Granny Smith))

Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81 (Rusa Resources)

Walley v Western Australia [1999] FCA 3; 87 FCR 565 (Walley)

Western Australia v Dimer [2000] NNTTA 290; (2000) 163 FLR 426 (Dimer)

Western Australia v Njamal People [1996] NNTTA 34; [1996] NNTTA 34; (1996) 134 FLR 211 (Njamal)

Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen)

Western Yalanji Aboriginal Corporation RNTBC v Edmund James Fitzgerald and Another [2023] NNTTA 41 (Fitzgerald)

Xstrata Coal Queensland Pty Ltd /Mark Albury (Karingbal #2);Brendan Wyman (Bidjara People)/Queensland [2012] NNTTA 93 (Xstrata)

Emma Brunello, Corey Johnston and Leilehua Fa'onevai, Crown Law

• [1] This is a decision about whether Mr John William Withers, Mr Hamish William Bergerson and Ms Jillian Vilma Withers (collectively the grantee parties) have negotiated in good faith in accordance with s 31(1)(b) of the Native Title Act 1993 (Cth).
• [2] The grantee parties have applied for the grant of two alluvial mining leases[1] located north-westerly of Mt Surprise township in North Queensland. Ewamian People Aboriginal Corporation RNTBC holds native title in relation to the area of the leases as agent for the Ewamian People.[2]
• [3] This matter has a long history. In 2017, the State of Queensland notified the proposed grant of the leases under the right to negotiate provisions of the Native Title Act. The effect of this notice is that the negotiation parties, being the grantee parties, Ewamian and the State, were then obligated to negotiate in good faith with a view to obtaining Ewamian's agreement to the grant of the leases.
• [4] From 2017 the parties did engage in some negotiations, however these attempts were unsuccessful. In March 2023, the grantee parties lodged a future act determination application with the Tribunal seeking a determination that grant of the leases may be done.
• [5] In October 2023, the Tribunal found the grantee parties had not negotiated in good faith and dismissed the future act determination application under s 148(a) of the Native Title Act.[3] The Tribunal also recommended the parties seek mediation by the Tribunal.
• [6] Following this decision, in late October 2023, the State contacted Ewamian's representative, North Queensland Land Council NTRB Aboriginal Corporation, and asked whether Ewamian were willing to continue to negotiate with the grantee parties with mediation assistance from the Tribunal. NQLC confirmed that mediation would only be considered if Mr Withers offered an apology, acknowledged the Ewamian People, and made a genuine financial counteroffer. The State relayed this position to the grantee parties.
• [7] The representative for the grantee parties, Mr Withers, provided a lengthy response. It is not clear from such response if the grantee parties themselves agreed to participate in mediation, however there was some attempt made by Mr Withers to address the preliminary matters raised by Ewamian.
• [8] In any event, the parties did not engage in any mediation and remained unable to reach an agreement in relation to the grant of the leases.
• [9] On 25 November 2024, Mr Withers once again applied to the Tribunal for a determination that the leases may be granted. This second application was accepted by the Tribunal on 2 December 2024.
• [10] For the reasons outlined below, I am satisfied that the grantee parties have not negotiated in good faith as required by s 31 of the Native Title Act. Accordingly, I must not proceed to make a determination on the application, and the application is dismissed under

• [11] Ewamian lodged the following material in respect of this inquiry:

(a) statement of contentions;[4]

(b) chronology;[5]

(c) index of documentary evidence;[6]

(d) Affidavit of John Cecchi with annexures;[7]

(e) list of authorities;[8] and

(f) reply to good faith submissions of grantee parties.[9]

• [12] The grantee parties lodged the following material in respect of this inquiry:

(a) response to native title party's chronology; [10]

(b) response to native title party's index and affidavit;[11]

(c) response to native title party's contentions;[12]

(d) list of authorities;[13]

(e) extract of section 240 of the Native Title Act;[14]

(f) extract of section 281 of the Mineral Resources Act 1989 (Qld);[15]

(g) document titled 'QLD Native Title Work Procedures - Module J: Dealings on continuing pre-Wik reservations and leases';[16]

(h) extracts from the 2023 decision; [17]

(i) spreadsheet of ML100019 and ML100104 site data points;[18]

(j) letter from native title party to grantee parties, marked confidential and without prejudice, dated 22 March 2023;[19]

(k) further contentions;[20] and

(l) further response to native title party's index.[21]

• [13] Unhelpfully, the material lodged by the grantee parties in this inquiry is difficult to follow and consists in large part of extracts of other documents and various pieces of correspondence interspersed with Mr Withers' commentary or response. Despite directions, there is also no paragraph numbering. As NQLC fairly contends, the material contains 'interlineations and commentary' making it difficult to ascertain what the original communication said.[22]
• [14] The State did not lodge any material in respect of this inquiry and appeared to not play an active role in the negotiation process other than through the initial inquiry regarding mediation.

• [15] The proposed leases cover an area of approximately 77 hectares. The grantee parties intend to conduct alluvial gold mining in this area.
• [16] ML 100019 is 26.83 hectares in size and is located, mostly, in Parallel Creek. This lease is proposed to be granted for an initial term of 23 years. The other lease, ML 100104, is located approximately 5 kilometres away and comprises 49.99 hectares along Dickson Creek. ML 100104 is proposed to be granted for an initial term of 21 years.[23]
• [17] As set out in the 2023 decision, the State's Cultural Heritage Database and Register search reports identify one engraving site in the area of ML 100019 and two engraving sites and one artefact scatter in the area of ML 100104.[24]
• [18] The grantee parties referred to these recorded sites in their material lodged in this inquiry, noting that the relevant surveys were carried out on 1 June 2019 and the sites recorded on 31 July 2020.[25]

• [19] The obligation to negotiate in good faith in the context of s 31 of the Native Title Act has been considered on many occasions, including recently by the Full Court of the Federal Court of Australia in Gomeroi who did not displace the existing legal principles surrounding the obligation.
• [20] The Full Court noted the obligation to negotiate in good faith involves both objective and subjective standards, with the good faith requirement directed towards the quality of a party's conduct. They reiterated good faith is to be assessed by reference to what a party has, or has not, done during negotiations, and is concerned with a party's state of mind, or intention, importantly, as manifested by its conduct.[26]
• [21] Justice O'Bryan noted the objective standards do not import an obligation to make 'reasonable offers', instead that the party is acting honestly in their negotiations.[27]
• [22] As noted by Justice Carr in Walley, and affirmed by Chief Justice Mortimer in Gomeroi:[28]

The Tribunal is after all doing no more at the good faith constraint stage than assessing the course of a negotiation, and measuring it objectively against a standard of honesty, open mindedness and willingness to listen. The fact of the making of a patently unreasonable offer in particular circumstances might be one indicia of a lack of honesty and fair dealing. It might indicate an ulterior motive. Or it may not. All will depend on the evidence and the circumstances.

• [23] Indeed, any negotiating conduct may be found to be so unreasonable that the party engaging in such conduct could not be said to be sincere or genuine in their desire to reach agreement.[29]
• [24] As Justice Lee outlined in Brownley, if a negotiation party:[30]

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.

• [25] In Gomeroi the Chief Justice also analysed whether 'payment' is synonymous with 'compensation' under the Native Title Act, stating:[31]

the ability of native title holders, or registered claimants, to pursue payments as part of their statutory right to negotiate serves a different and wider purpose from the ability to seek compensation for the doing of certain acts under Division 2 of Part 5 of the NTA, although the two purposes are not mutually exclusive and there may be some overlap.

• [26] Justice O'Bryan also addresses this issue in Gomeroi, noting it is not inaccurate or inappropriate to use the word 'compensation' to describe payments that may be negotiated between parties under s 31, and further there is no reason negotiating parties cannot agree that compensation payable for the anticipated effect of a proposed act is to be calculated on the basis of a 'royalty', as recognised by s 33(1) of the Native Title Act.[32]
• [27] The negotiation process set out in the right to negotiate provisions of the Native Title Act is a key part of the future act regime and should be an effective and meaningful right. The right to negotiate should be construed beneficially when balancing the rights of the native title party and the broader community.[33]
• [28] In the often-quoted matter of Njamal a set of indicia were proposed to assist in assessing whether a party has acted in good faith.[34] Whilst providing helpful guidance, the Njamal indicia are not exhaustive. I note Ewamian referred to the Njamal indicia in its contentions, as set out below at [32].
• [29] In the matter of Dimer, the Tribunal helpfully categorised the Njamal indicia into a series of related, though not necessarily co-extensive, obligations:[35]

(a) an obligation to communicate with other parties within a reasonable time and a reciprocal obligation to respond to communication received within a reasonable time (Njamal (i), (iii), (iv), (v), (vii), (ix));

(b) an obligation to make proposals to other parties with a view to achieving agreement and a reciprocal obligation on other parties to respond either by making counter-proposals or by way of comment or suggestion about the original proposal (Njamal (ii), (xv));

(c) an expectation that a party will make inquiry of other parties if there is insufficient information available to make an informed choice about how to proceed in negotiations and an obligation on those other parties to provide relevant information within a reasonable time (Njamal (viii)); and

(d) an obligation to seek from other parties appropriate commitments to the process of negotiation or in relation to the subject matter of negotiation and a reciprocal obligation to make either appropriate commitments to process, or appropriate concessions as the case may be, (Njamal (vi), (x), (xi), (xii), (xiii), (xiv), (xvii)).

• [30] When assessing good faith, the overall conduct of a party must be considered in context of the matter and its particular facts. Importantly, the conduct of one party is normally influenced by the conduct and actions of the other parties, and the conduct must be viewed in this context.[36]
• [31] Importantly, the obligation of good faith is intended to protect the native title party particularly, as explained by Justices North and Griffiths in the Full Court matter of Sheffield:[37]

although the obligation to negotiate in good faith is imposed on all the negotiation parties, it is explicitly stated to be directed to obtaining the agreement of each of the native title parties to the specified matters. It is evident that the object of the obligation is directed to protecting the native title parties. This is further reflected in the fact that the s 36(2) prohibition on the arbitral body making a s 35 determination operates by reference to any negotiation party (i.e. Government party, grantee party or native title party) satisfying the arbitral body that any other negotiation party, other than a native title party, did not negotiate in good faith as mentioned in s 31(1)(b). Thus, while a native title party has an obligation to negotiate in good faith pursuant to s 31(1)(b), this is a matter of imperfect obligation and appears not to carry any relevant consequences under the NT Act if the native title party fails to discharge that obligation. This stands in sharp contrast to the statutory consequences for the other two categories of negotiation party.

• [32] Ewamian contends that the grantee parties have not negotiated in good faith as required by s 31(1)(b). They say the grantee parties have engaged in conduct throughout the course of negotiations which is antagonistic and unreasonable and not directed to reaching agreement. By reference to the indicia set out by the Tribunal in Njamal, and adopting the Njamal indicia numbering, Ewamian contends the grantee parties:[38]

(a) conducted themselves to adopt a rigid non-negotiable position (Njamal (xiv));

(b) failed to do what is reasonable in the circumstances (Njamal (xviii));

(c) failed to take reasonable steps to facilitate and engage in discussion between the parties (Njamal (vi)); and

(d) by refusing to acknowledge Ewamian's native title rights in any real sense harmed the negotiating process (Njamal (xvi)).

• [33] Ewamian also refers to the Tribunal's decisions in De Roma, Fitzgerald, and the 2023 decision, all finding that the grantee parties, by the negotiation conduct of Mr Withers, did not negotiate in good faith, and contends that despite these findings the grantee parties have continued a similar pattern of behaviour in their approach to negotiations with the native title party. Ewamian contends the grantee parties did not put forward any meaningful offers to resolve the critical issues of compensation and cultural heritage protection and continued to advance incorrect assertions about the nature and extent of the native title rights held which had characterised the earlier communications.[39]
• [34] The grantee parties say any reference to the De Roma, Fitzgerald or the 2023 decision is unhelpful as those decisions have no bearing on the current negotiations. However, the grantee parties then go on to address those earlier decisions and quote from them extensively in their material. In their responsive contentions, the grantee parties appear to suggest that they had in fact engaged in negotiations in good faith by indicating they would agree to the $550.00 amount contained in the Small Scale Mining Indigenous Land Use Agreement, appearing to suggest that this offer was made by them based on comments by Member Cooley in the 2023 decision that such a figure was reasonable.[40]
• [35] That is not in fact what Member Cooley was suggesting in her 2023 decision, and it appears the grantee parties have misunderstood her reasons.
• [36] The grantee parties also say they agreed to the ancillary agreement on 6 November 2023, and the native title party is simply misleading the Tribunal and delaying the process.[41] In reply, Ewamian denies this contention and says it was genuinely uncertain as to what the grantee parties were proposing, and in any event it was not required to agree to the terms of an ancillary agreement from 2017, or the SSM ILUA, nor an agreement involving unrelated parties.[42]
• [37] The State has not lodged any contentions or expressed any view addressing good faith in this inquiry.

• [38] As set out by Justice White in the matter of Sheffield, and confirmed by the Tribunal in subsequent matters,[43] s 31 does not specify any period during which the obligation to negotiate in good faith remains current. The obligation commences upon the issuing of a s 29 notice by the relevant Government party and continues until the making of an agreement as contemplated by s 31(1)(b).[44]
• [39] There is already a Tribunal decision examining what occurred prior to the 2023 decision. In this inquiry I am concerned with the course of negotiations that occurred following that earlier decision, although my consideration may be informed by the earlier negotiations.[45]
• [40] As set out above at [6], it was the State who first attempted to recommence negotiations following the 2023 decision. On 23 October 2023, the State contacted NQLC and asked if Ewamian were willing to continue the negotiations with the grantee parties with mediation assistance.
• [41] On 25 October 2023, NQLC confirmed that mediation will not be considered by Ewamian unless the grantee parties offered an apology, acknowledged the Ewamian People, and made a genuine financial counteroffer.[46]
• [42] On 6 November 2023, Mr Withers, for the grantee parties, sent a lengthy, confusing, and often inflammatory response to the State and NQLC. To highlight the tone of Mr Withers' response, I note the following extract (his emphasis):

I apologise for this RTN issue to be going on so long, but if the Native Title Party had have mentioned in the first place that the Bench Mark ILUA offered as well as the Draft Ancillary Agreements sent out by the NTP in early December 2017 were meant to be set at as a rigid, static stance and being Not Negotiable, then all no doubt could have been solved at a FAD prior to the NTP going out of their way in 2019 to make sure that there were some CH Points "MISLEADINGLY" put on the DATSIP Database within the areas of the 2 (ML's).

• [43] The cultural heritage points Mr Withers refers to in the extract above are the engraving site in the area of ML 100019, and two engraving sites and one artefact scatter in the area of ML 100104, each of which were recorded in the State's Cultural Heritage Database and Register. To suggest that there was something misleading or improper in the native title party recording its cultural heritage places on the register maintained for such purpose is confusing and no doubt offensive to the Ewamian People. Mr Withers appears to suggest, later in that same response, that the native title party should have waited for an agreement to be reached prior to doing any cultural heritage inspections. Given the history of dealings between these parties, Ewamian may not have regarded there was reasonable prospects of reaching agreement with the grantee parties. Whatever the reasoning, Ewamian acted reasonably to record and seek to protect and preserve their cultural heritage and to suggest the recording of sites was 'misleading', as Mr Withers does, carries with it an entirely different set of allegations.
• [44] Mr Withers' response also contains other statements of an inflammatory or a pettifoggery nature, for example (his emphasis):

I apologise for the Tribunals Member mention of the GP not agreeing to Commercial Accommodation at cost, no doubt the NTP complained to the Tribunal about this matter. I thought, and noted to all whilst at the FAD, that the Caravan Park at the O'Breins Creek which is the closest Accommodation area to the 2 ML's, and being a very comfortable area to camp at, and to have hot or cold showers, and toilets, small shop etc. as being classed as a Commercial Accommodation area, and to be noted for costs in the ACH Inspection at Schedule 3 in the proposed AA's. I "? GUESS ?" that the reason why the NTP have not in the distant past, and are not currently exercising their NT Rights and Interests in the Van Lee Pastoral holding area is because if the O'Breins Caravan Park is not good enough accommodation then "? MAYBE?" that is the reason that they are not exercising their Rights etc in or around the ML's is because they are more happier to be closer to a Township where there is far better accommodation, better food, water and maybe other reasons they could give for not exercising their Rights and Interests in the ML areas, or anywhere nearby.

• [45] Mr Withers completes his response with what he says is 'a genuine counteroffer, and such offer is my final genuine offer if I have to again apply for a FAD'. He goes on to detail what the 'final offer' is, largely by reference to other agreements, including the ancillary agreement exchanged between the parties in 2017. This financial offer was unclearly presented. On plain reading, it is unclear exactly what financial offer was being made by the grantee parties, or the basis for such offer. To add to the confusion, with attachments this response was 120 pages in length.
• [46] Importantly, this offer was the first offer made following the 2023 decision and it was presented by Mr Withers as a final offer. Although there was a history of offers exchanged between the parties prior to the 2023 decision, this was the first correspondence / 'offer' from the grantee parties made during the relevant negotiation period I am required to primarily consider for the purposes of this inquiry. Presenting the offer as final demonstrates the grantee parties adopted a rigid non-negotiable position not indicative of good faith.
• [47] Mr Withers also notes he is not open to providing further information in relation to his 'final offer', commenting:[47]

This noted above is my final genuine counteroffers for the financial issues that is noted by the NTP tor the present Contentions, and I do not wish to give any further details regarding the AA's other than the above mentioned, which is self explanatory so that I should never be misquoted AGAIN if we were AGAIN to be at a FAD, unless, and to save time on agreeing to go, or not to go to Mediation etc, and drawing out the Negotiations any longer than 3 months aft the FAD decision was handed down on the 6/10/2023

• [48] Such conduct does not demonstrate good faith or an intention to meaningfully negotiate with the native title party with a view to obtaining the agreement of the Ewamian people.
• [49] Mr Withers' conduct at the outset of this recommenced negotiation process, including to make one 'new' offer and note it as final; to suggest that Ewamian had misleadingly or nefariously sought to have their cultural heritage sites recorded; and that they did not exercise their native title rights and interests in the lease areas or anywhere nearby, did not demonstrate an intention to reach agreement in good faith.
• [50] The Full Court noted in Cox that for negotiations to be in good faith it is not sufficient that the parties merely 'go through the motions' with closed minds or rigid or predetermined positions, and engagement in disingenuous conduct such as obfuscation and pettifoggery may lead to a finding of absence of good faith.[48]
• [51] In this initial response, Mr Withers' conduct on behalf of the grantee parties demonstrated a rigid position. Further, the 'final' offer was presented in a confusing and obscure way and contained remarks of a pettifoggery and inflammatory nature.
• [52] By including inflammatory comments and unconstructive remarks in their initial response of 6 November 2023, the grantee parties failed to demonstrate good faith or a genuine intention to obtain Ewamian's agreement to the grant of the leases.
• [53] Having examined all the material exchange between the parties, I find this initial response from Mr Withers set the tone of the negotiations occurring thereafter. When undertaking my assessment of good faith, this context is relevant when considering the resulting responses and approaches of the other parties.[49]
• [54] Before the State or Ewamian responded to the 'final offer', on 11 December 2023, Mr Withers sent further correspondence on behalf of the grantee parties. Again, this response was curious and at times confusing. The correspondence opened (his emphasis):

First to this same email, I attach a Fact Sheet that notes why the AG has noted that they wish to cut finding [sic] for Negotiations etc. and I agree, because of the numerous amount of template ILUA's that have been developed and the numerous amount of judgements made in the past by no doubt taking into consideration of the Legislation that is in regards to Agreement making, then all should be able to come to an Agreement easily.

• [55] The correspondence then explained that the grantee parties intend to transfer the leases to a Mr Tony Graham. Relevantly, Mr Withers states (his emphasis):

I ask the NTP to "Please" ASAP agree to the consented to AA's with the up to date CPI increases that they sent out me in the past, and those were noted in the Email as attachments to all on the 6/11/2023. PDF's 24. and 24. A.

There is no doubt in my mind that the Tribunal Members are suggesting that the Bench Mark ILUA offered by the NTP is the definite way forward, and a copy of what the ILUA contents offered just for Mining Leases only was copied to the NTP and the State on the 6/11/2023 was noted above being, PDF's 24. and 24. A.

• [56] Confusingly, the correspondence Mr Withers referred to of 6 November 2023 attached an unsigned and undated ancillary agreement between the Tatampi Puranga Aboriginal Corporation and the grantee parties, whereas the 11 December 2023 correspondence attached an unsigned and watermarked as draft ancillary agreement between Western Yalanji Aboriginal Corporation and Rai Pickering. Putting aside the confusion created by attaching or referring to draft agreements with parties other than the relevant negotiation parties, I note the two draft ancillary agreements are different. For example, they note different annual payments and Aboriginal cultural heritage inspection costs. It is not clear on plain reading which agreement Mr Withers says Mr Graham, or indeed the grantee parties, will agree to or are offering.
• [57] It is also concerning that Mr Withers states that Tribunal Members are suggesting that the 'Bench Mark ILUA' is the 'definite way forward'. It is not appropriate for the Tribunal to suggest what future act compensation package the parties ought to agree. That is not the role of the Tribunal in considering and determining a future act application. Mr Withers quotes from De Roma, Fitzgerald and the 2023 decision to support his statement, however the excerpts he quotes from instead demonstrate the relevant Member considering and referring to contentions made by the parties on the issue of compensation, with some commentary regarding the reasonableness of offers in the context of considering good faith.
• [58] There is a difference between Tribunal Members forming a view as to the reasonableness of an offer as an indicia of good faith, and finding or suggesting that a particular offer should be accepted by the parties.
• [59] In response to this further correspondence from Mr Withers, on the same day, NQLC for Ewamian responded indicating they would be unable to obtain instructions from the native title party until the new year.
• [60] On 14 February 2024, Mr Withers again contacted NQLC for Ewamian and requested a response, also noting:

[w]e the GP's definitely do not want to go to Arbitration, and would certainly agree to mediation, but would prefer of the NTP honoring [sic] and agreeing to their own standing offers made to the GP's that is noted with CPI increases each year since the offer.

• [61] NQLC for Ewamian responded, again on the same day, noting they were meeting with Ewamian that week to discuss the matter.
• [62] On 16 April 2024, NQLC responded in detail and relayed that Ewamian still required a genuine apology as the 6 November 2023 correspondence was not sufficient, and they also required a genuine current commercial offer. NQLC noted that any commercial offer for the current negotiations should not be informed by the SSM ILUA or the ancillary agreement from 2017 as '[t]hese agreements are not comparable for current negotiations.'
• [63] It is evident NQLC were requesting a clear and direct offer, not one made by references to other agreements.
• [64] On 30 April 2024, Mr Withers replied for the grantee parties. In that response Mr Withers raised that when negotiations between the parties were occurring in 2022, NQLC directed Mr Withers to provide his comments via marking-up a version of the ancillary agreement from 2017. Mr Withers also expressed his frustration that Ewamian refused to participate in mediation save for under certain circumstances, and again invited the native title party to (his emphasis) 'honour one of their offers soon, being the ILUA contents, or Agreements noted in past attachments to an email being Ref: 24. and 24. A. or offer the Agreement that was consented to for ML 100207.'
• [65] The nature of the outstanding issues between the parties in relation to this application did warrant exploration via mediation. The preliminary issue raised by Ewamian regarding an apology is a sensitive and subjective matter best discussed in person. There was also clearly confusion on the part of the grantee parties' representative regarding the way he should present any financial offers, a matter that could have been discussed via a facilitated, confidential exploration of the issues at mediation. I directly expressed this view to the parties at a preliminary conference regarding this matter, and strongly urged all parties to consider attempting mediation, even if such mediation occurred in parallel to the inquiry process. Unfortunately, this suggestion was not taken up.
• [66] However, as noted earlier in this decision, the initial inflammatory and pettifoggery response of Mr Withers following the 2023 decision set the tone of the ongoing negotiations between the parties and provides some context for the native title party's ongoing refusal to participate in mediation. Further, noting the 2023 decision, the pre-requirement that Mr Withers apologise and provide a clear commercial offer, was not an unreasonable request from Ewamian in the circumstances.
• [67] On 6 May 2024, NQLC responded for Ewamian. NQLC stated the correspondence of 30 April 2024 does not offer an apology or a genuine commercial offer, rather it appeared to be in the form of a submission and, in their view, does not constitute a response demonstrating reasonable steps toward reaching an agreement under the right to negotiate process. They also reiterated the request that Mr Withers:

(a) stop referencing or bench marking the SSM ILUA, referring to earlier Tribunal decisions finding 'Mr Withers has sought to use the SSM ILUA as a mechanism to generate distraction and in effect, stymie negotiations and prevent agreement making'; and

(b) not refer to negotiations between WYAC and Rai Pickering in relation to ML 100207, as they have nothing to do with Ewamian, noting '[p]revious or ongoing negotiation between other parties have no bearing or relevance to current negotiations.'.

• [68] NQLC also reminded Mr Withers that negotiations are confidential between the parties and requested Mr Withers stop including the Department of Resources in correspondence surrounding the negotiation of an ancillary agreement, noting they are not proposed to be a party to any such agreement and should not be included in genuine financial offers.
• [69] Despite this request, I note Mr Withers continued to generally include the Department of Resources in the correspondence exchanged between the parties throughout the negotiation period, a matter repeatedly raised by NQLC.
• [70] On 10 May 2024, Mr Withers replied for the grantee parties, including the Department of Resources. Mr Withers started by addressing the request for an apology, stating he made an apology on 6 November 2023 and Ewamian have not otherwise detailed 'what, or why I should make any further apologies for.'
• [71] In the 6 November 2023 correspondence Mr Withers did broadly apologise for some matters. Mr Withers apologised for the right to negotiate issue 'going on for so long'; for not attaching the compensation agreements that the grantee parties have with the pastoral holder for the lease areas; for not attaching the debt collectors' documents; and for the Tribunal's mention of the grantee parties not agreeing to commercial accommodation at cost.
• [72] In the context of the articulated issues between the grantee parties and Ewamian, and the offensive remarks made by Mr Withers and noted in the 2023 decision, none of the qualified apologies given appear to address the concerns of the native title party. Further, NQLC made it clear in their responses of 16 April and 6 May 2024 that the Ewamian People still required a genuine apology and did not accept that the apologies offered were sufficient. Mr Withers did not attempt to address this or seek further clarification.
• [73] I also note Mr Withers did not lodge in this inquiry the compensation agreements that the grantee parties have with the pastoral holder for the lease areas, or the debt collectors' documents, both referred to in his initial apology. Nor is there any evidence before me that such documents were provided to Ewamian following the apology. In this context, the purpose of these apologies remains unclear.
• [74] In the 10 May 2024 correspondence, Mr Withers also repeats the offers he says he put in the 6 November 2023 correspondence and explains, largely by reference to earlier Tribunal decisions, why he feels this is an appropriate position. He states (his emphasis) 'I ask the NTP: "Why should the GP's make any further commercial offers when they are already agreeing to the standing instructions on offer made by the NTP?"' Again, Mr Withers' response demonstrates a rigid, non-negotiable position not conducive to reaching agreement, as NQLC for Ewamian had clearly stated several times that was not their instructions, and had invited Mr Withers to make a direct and clear offer without reference to other agreements.
• [75] In response to NQLC's comment that negotiations should remain confidential between the parties to such negotiation, Mr Withers replied that he was not referring to the negotiations between WYAC and Rai Pickering, but the executed agreements made. I note that Mr Withers did not provide a copy of any such executed agreement, and the draft agreement he did provide contained the usual confidentiality terms suggesting it should not have been obtained or shared by Mr Withers for the purposes of the negotiations. In any event, his explanation misses the point made by the native title party entirely.
• [76] The point repeatedly made by NQLC was what may have been agreed between other parties in relation to other tenements, or indeed the parties to this negotiation in relation to other tenements, or historically, is not relevant, helpful or binding to the negotiations occurring between the parties now.
• [77] Following the 2023 decision, Mr Withers only made disjointed and confusing 'offers' by reference to other agreements, despite Ewamian repeatedly making it clear this was confusing and not acceptable. Based on the material before me, the 'offer' consistently presented by Mr Withers was not in a form capable of acceptance by the native title party. At best, this rigid approach appears to be unhelpful and not conducive to obtaining the agreement of the native title party, and at worst, as suggested by Member Kelly in Fitzgerald,[50] a mechanism to generate distraction and stymie the negotiations. Either way, it does not demonstrate good faith.
• [78] On 21 May 2024, NQLC again responded for Ewamian. NQLC clarified to Mr Withers that the apology requested was for 'the offensive and disrespectful correspondence from yourself in the past, as acknowledged by the NNTT', referring to excerpts of the 2023 decision including 'Mr Withers' correspondence descended from civility to hostility and was often rude or belligerent. Much of it was outright offensive and disrespectful of the Ewamian People and their native title rights'.[51] NQLC also repeated the request for a current, relevant offer not made by reference to historical agreements, and that the grantee parties stop including the Department of Resources in the confidential negotiations for an ancillary agreement which the Department will not be a party to.
• [79] On 31 May 2024, Mr Withers replied for the grantee parties. Mr Withers' response again focused on why he says the agreements referred to in the 6 November 2023 correspondence were, and remain, an appropriate position of the grantee parties. In relation to the apology, Mr Withers thanks NQLC for their clarifications and says that he can now remember that the native title party and 'Member Cooley' were 'upset':

when I was trying to use past Judgements (Case/Law) and Legislation for trying to reduce the costs for Compensation and for the ACHI cost for that Survey. It seems that I certainly did not know and understand the Judgements meanings or Legislation Regarding S240 of the NTA, S281 of the MRA or S104 of the ACHA.

I unconditionally apologise for using those issues that then became offensive and disrespectful to the NTP. I know now that I should have agreed to your offered agreement noted as at References 24. and 24.A that was noted with CPI to be added to bring the costs up to date, or as noted using past template ILUA's that was noted in the Fact Sheet that was attached to my email sent to the NTP on the 11/12/2023.

• [80] Unfortunately, despite clear and direct responses from NQLC for Ewamian, Mr Withers continued to reference previous agreements and continued to apologise for matters unrelated to the offence caused to the native title party. It is not clear if Mr Withers simply failed to understand the nature of the apology sought by Ewamian, or the apologies he did offer were provided in a tactical way to give the appearance of attempting to address their concerns. If the grantee parties were not prepared to give the apology sought, it may have assisted all parties if Mr Withers simply said so.
• [81] On 12 July 2024, Mr Withers sent further correspondence to Ewamian and the Department of Resources. He requested Ewamian:

Please send out these NTP offered Commercial Agreements for these 2 Mining Leases that we have agreed to more than 7 months ago, as noted in our letter 31/5/2024, so that we can get them signed and executed ASAP. I ask the State to also ASAP send out the S31 Deed for signing as well, as I am sure that they will agree that we, since the Determination that was made by the NNTT in October 2023 is that we have in good faith agreed to all that the NTP has asked for since the FAD was made about 9 months ago.

• [82] In the context of the well documented engagement between the parties since October 2023, there was no basis for Mr Withers to assert Ewamian offered an agreement that the grantee parties agreed to. To continue to make this assertion, when it had been corrected many times, was misleading and harmful to the negotiations. The continued rigid approach of the grantee parties, in the face of numerous clarifications from NQLC, does not demonstrate negotiating in good faith with a view to obtaining the agreement of Ewamian.
• [83] On 15 July 2024, NQLC wrote to the Department of Resources, who had been included in the correspondence by Mr Withers, to confirm that there was no agreement in place between the parties. On the same day they also wrote to Mr Withers and repeated that the SSM ILUA is historical and no longer considered by Ewamian for new tenement applications. Further, NQLC once again requested an apology and a genuine commercial offer.
• [84] On 21 July 2024, Mr Withers responded for the grantee parties. Unhelpfully, Mr Withers repeats a confusing reference to a fact sheet regarding native title respondent funding, followed by a reference to two mediations Mr Withers says occurred in the past between small scale miners and the native title party involving two different areas, and convened by former Tribunal Member Valerie Coombs. He goes on to state (his emphasis):

[i]t seems to us now, is that the NTP and their legal representatives are aware of these past mediation outcomes, and maybe? (Only Guessing?.) is that this is the reason that Mediation is not being considered by the NTP?

• [85] It is unfortunate that this far into the negotiation process Mr Withers continued to ignore the numerous requests made by NQLC that he not refer to confidential negotiations involving other parties. In fact, in this reply he not only ignores the request but refers to additional confidential matters. It is also unfortunate he suggests there is some alternative reason Ewamian required an apology and clear financial offer before they would participate in mediation. Once again, such conduct does not demonstrate that the grantee parties were genuinely negotiating in good faith with a view to obtaining the agreement of Ewamian.
• [86] On 22 July 2024, NQLC replied confirming that Mr Withers' response 'still does not constitute a commercial offer, or an apology' and again reminded Mr Withers that negotiations are confidential.
• [87] The tone and substance of these repetitive exchanges did not materially change over the course of July and August 2024.
• [88] On 8 October 2024, NQLC wrote to Mr Withers and attached a draft ancillary agreement in relation to the leases, provided on a confidential and without prejudice basis. They noted the agreement set out a current commercial offer and repeated that any previous agreements are no longer suitable for the negotiations.
• [89] This was positive progress. It appears Ewamian had formed the view that Mr Withers was unable or unwilling to make a clear commercial offer, so the native title party took it upon themselves to do so in an attempt to create some momentum in the negotiations.
• [90] On 21 October 2024, Mr Withers replied stating that the grantee parties did not agree to the draft agreement provided and felt as though they were being 'tricked into paying costs for compensation', noting that they are not the Government 'making Acquisition' and are not 'trying' to extinguish native title. This response demonstrates Mr Withers still failed to understand the right to negotiate process established under the Native Title Act. Mr Withers goes on to repeat that the grantee parties remain of the view that the way forward is entry into the historical agreements referred to in their earlier correspondences.
• [91] On 31 October 2024, NQLC responded repeating their previous statements regarding the irrelevance of historical and unrelated agreements and noting that the grantee parties had indicated they would not be engaging with the draft ancillary agreement provided whatsoever, and would not be making a counteroffer, thereby demonstrating they were not negotiating in good faith.
• [92] On 4 November 2024, Mr Withers replied again. The reply was lengthy, confusing and repetitive, and in essence, it relayed the position of the grantee parties remained unchanged and their view remained that the historical agreements referred to by Mr Withers in November 2023 should be agreed by the native title party.
• [93] The grantee parties and Ewamian exchanged several correspondences over the course of November 2024, all along the same line, with NQLC requesting that the grantee parties respond to the current draft agreement presented for the native title party, and Mr Withers responding to insist that Ewamian agree to the historical agreements.
• [94] On 25 November 2024, the grantee parties made the application now the subject of this inquiry.

Did the grantee parties negotiate in good faith?

• [95] Having regard to the negotiations between the parties throughout the relevant period, Mr Withers' conduct does not demonstrate that the grantee parties were negotiating in good faith with a view to obtaining the agreement of Ewamian.
• [96] Mr Withers failed to make a reasonable attempt to address the concerns raised by Ewamian in their request for an apology, with such request made at the outset of the recommenced negotiations immediately following the 2023 decision.
• [97] As noted in earlier Tribunal decisions,[52] in this matter the tone of Mr Withers' correspondence was typically confusing and offensive. Regrettably, Mr Withers made comments which were offensive and disrespectful of the Ewamian People and their native title rights.
• [98] Further, Mr Withers adopted a rigid approach in his unwavering insistence on making unclear offers by reference to historical or unrelated agreements. As NQLC note in their contentions, this included agreements such as the SSM ILUA that the grantee parties had in fact opted out of in 2017, when it was used by Ewamian with other proponents between 2014 and 2019.[53]
• [99] Despite multiple invitations from Ewamian to make a clear, commercial offer Mr Withers was unable or unwilling to do so. This conduct is not a reasonable basis from which to expect agreement to be reached.
• [100] Unfortunately, it appears Mr Withers has still not understood the concerns with his conduct raised in earlier Tribunal decisions.
• [101] While Mr Withers purported to engage in negotiation and stated the grantee parties wished to reach agreement during the negotiations, other statements and the overall conduct for the grantee parties indicated otherwise. The conduct of Mr Withers was antithetical to reaching agreement with the native title party.
• [102] The actions of Mr Withers instead demonstrate an intention to say and do what he understood earlier Tribunal decisions and the Native Title Act required for the negotiations to be regarded as in good faith and nothing more. I am not satisfied there was a genuine intention to reach agreement with Ewamian.
• [103] It is unfortunate that NQLC refused to participate in mediation unless certain preconditions were met. Whilst the preconditions may have been reasonable requests, mediation offered the parties a useful mechanism to explore the outstanding issues between them, including those raised in the preconditions. It may have also assisted the negotiations if the native title party themselves put forward a clear financial offer at an earlier stage of the recommenced negotiations.
• [104] However, the grantee parties' initial correspondence following the 2023 decision contained inflammatory and pettifoggery comments that unfortunately set the tone of the dealings between the parties moving forward. And this conduct continued. As noted above, I must consider the conduct of the native title party in this context.
• [105] I agree with the contentions made by Ewamian that over the course of the negotiations the grantee parties adopted a rigid non-negotiable position. I am also satisfied that the conduct of Mr Withers directly harmed the negotiation process through his refusal to meaningfully acknowledge Ewamian's native title rights or meaningfully engage with the apology sought. Mr Withers' ongoing inflammatory, pettifoggery and at times offensive comments also harmed the negotiation.
• [106] The negotiation process set out in the right to negotiate provisions of the Native Title Act must be construed beneficially for the native title party. It is a meaningful right embodied in the future act scheme.
• [107] Having regard to all the material before me, I am satisfied Mr Withers' conduct for the grantee parties, including adopting a rigid and unhelpful approach throughout the negotiations, did not indicate an intention to negotiate in good faith with a view to obtaining the agreement of Ewamian, and did not meet the standard required under s 31(1)(b) of the Native Title Act.

• [108] I am satisfied that the grantee parties did not negotiate in good faith as required by s 31(1)(b) of the Native Title Act and, therefore, I must not proceed to make a determination under s 38. I dismiss the application under s 148(a) of the Native Title Act.

[2] Ewamian Determination. Note the Tatampi Puranga Aboriginal Corporation ICN 7950 was the RNTBC as at the date of determination. The corporation name was changed to Ewamian Tatampi Puranga Aboriginal Corporation in 2019, and then to Ewamian People Aboriginal Corporation in 2021.

[4] Native title party, Native title party statement of contentions on good faith, dated 7 February 2025 (NTP contentions).

[5] Native title party, Native title party chronology, lodged 7 February 2025.

[6] Native title party, Index of documentary evidence, lodged 7 February 2025.

[7] Affidavit of John Cecchi, affirmed 7 February 2025 (Cecchi Affidavit).

[8] Native title party, List of authorities, lodged 7 February 2025.

[9] Native title party, Native title party reply - good faith submissions of grantee party, dated 7 March 2025 (NTP reply).

[10] Grantee parties, Grantee party response to the cronology [sic] of the native title party, lodged 21 February 2025.

[11] Grantee parties, Re_Index, and Re_Affidavit, lodged 21 February 2025.

[12] Grantee parties, Grantee response to the native title party statement of contentions on good faith, lodged 21 February 2025 (GP response to contentions).

[13] Grantee parties, List of authorities, lodged 21 February 2025.

[14] Grantee parties, Native Title Act 1993 - Sect 240, lodged 21 February 2025.

[15] Grantee parties, Section 281 MRA, lodged 21 February 2025.

[16] Grantee parties, QLD Native Title Work Procedures - Module J: Dealings on continuing pre-Wik reservations and leases, lodged 21 February 2025.

[17] Grantee parties, Points from determination 6/10/2023 QF2023/0001 & QF2023/0002 - Member Nerida Cooley, lodged 21 February 2025.

[18] Grantee parties, ML100019 and ML100104 site data points 2, lodged 21 February 2025.

[19] Grantee parties, GP 20230322 Ltr John Withers (AHR) RE MLs 100019 100104 response to 21.3.23 Ltr JKT and PLB, lodged 21 February 2025, dated 22 March 2022.

[20] Grantee parties, GP further submissions re direction 4, lodged 7 March 2025.

[21] Grantee parties, GP copied index of relevent [sic] documentary evidence from. re: NTP Affidavit, lodged 7 March 2025.

[23] Queensland Government, ML 100019 Resource authority public report and ML 100104 Resource authority public report, printed 9 November 2016, submitted by the grantee parties with the application; Cecchi Affidavit pages 136 and 137.

[25] GP response to contentions at page 5.

[26] Gomeroi at [96] (Mortimer CJ) and [406] (O'Bryan J).

[28] Walley at [15], Gomeroi at [96].

[29] Placer (Granny Smith) at [30].

[33] Njamal at 7 citing Waljen at 16-22.

[40] GP response to contentions at page 6.

[43] See for example Rusa Resources at [12] and [15].

[52] See 2023 decision [61], [77]-[79], [86]-[88]; Fitzgerald at [172]-[173]; and De Roma at [142]-[143].