Kevin Peter Walley on Behalf of the Ngoonooru Wadjari People v State of Western Australia

The Legislative Framework 3 I set out the legislative framework in Walley at pp 564-566. For present purposes I think that it is sufficient to set out only the provisions of ss 31 and 33 [the reference to "the notice" in s 31(1) is to the notice given by the Government party of its intention to do a permissible future act, in this case to grant the Mining Leases to the grantee party]: "Normal Negotiation Procedure Government party to negotiate 31. (1) Except where the notice includes a statement that the Government party considers the act attracts the expedited procedure, the Government party must: (a) give all native title parties an opportunity to make submissions to it, in writing or orally regarding the act; (b) negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to: (i) the doing of the act; or (ii) the doing of the act subject to conditions to be complied with by any of the parties. . . . Negotiations to include certain things 33. Without limiting the scope of any negotiations, they may, where relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to: (a) the amount of profits made; or (b) any income derived; or (c) any things produced; by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done."

Grounds 1 - 4 4 Common to these four grounds was an attack on the Tribunal's reasoning on the extent of the obligation on the Government party to negotiate. In particular, the applicant contended that the Tribunal erred in law in deciding that such obligation only extended to negotiating about issues related to or concerned with the doing of the particular future act in question. In summary, the applicant contended that the Tribunal erred in law by failing to give proper consideration to the potential of the grant of the Mining Leases to lead to productive mining and to some fourteen demands which had been made by the applicant. The four errors of law which the applicant contended were made by the Tribunal were: . improper exercise of power by failing to take into account as a relevant consideration or to give proper consideration to the potential for the grant of the Mining Leases to lead to productive mining [Ground 1]; . improper exercise of power in failing to take into account as a relevant consideration or to give proper consideration to the substance of, or lack of negotiations about, the potential for productive mining consequent upon the grant of the Mining Leases [Ground 2]; . improper exercise of power in failing to take into account as a relevant consideration or to give proper consideration to the failure of the Government party to make any proposal which included terms about the potential for productive mining consequent upon the grant of the Mining Leases [Ground 3]; and . error of law in deciding that the Government party's obligation under s 31(1)(b) of the Act only extends to negotiating about issues related to or connected with the doing of the particular act in question and thereby failing to take into account relevant considerations being the Government party's response to 14 concerns expressed by the native title party at a meeting at Four Corners Well on 17 February 1997 [Ground 4]

The Applicant's Contentions 5 The applicant contended that the question whether the Government party had negotiated in good faith must be judged "against the framework of the potential rights which the future acts may give to a grantee party". The Tribunal was bound, so it was put, to give "weighty consideration" to the potential rights conferred by the future act when it [the Tribunal] determined whether the Government party had negotiated in good faith. The applicant relied upon a decision of the Full Court of this Court in Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at pp 619 and 631 (and the cases cited in that decision) for the proposition that the Tribunal's failure to give such proper consideration was an error of law. Mr M T Ritter, counsel for the applicant, took me to certain passages of the Tribunal's reasons (and in particular between pp 56-63) which he contended demonstrated this error. They can be summarised as follows: . the Government party's letter dated 19 September 1997 which, so Mr Ritter submitted, did not contain any proposals relating to the "potential productive phase of the mining lease applications". Mr Ritter submitted that the Tribunal erred in not regarding the Government's failure to make any such proposal as being a matter of significance when deciding whether the Government party had negotiated in good faith; . the Tribunal's refusal to consider the likely outcomes of a s 35 determination (the imposition of conditions and the like) and assess against those outcomes whether the Government party had negotiated in good faith. The applicant pointed to this passage (at 62) of the Tribunal's reasons: "It remains my view that this is an appropriate statement of what it is reasonable to require the Government party to do [a reference to the Tribunal's decision in Njamal (NNTT WF/4, 7 August 1996 at 48-49, where the Tribunal held that negotiation in good faith may well mean more than just facilitating and actively participating in discussions and might require the making of proposals about things which the Government party was prepared to do in order to achieve an agreement] in circumstances such as this and in the current state of ignorance of what the Tribunal might determine as appropriate conditions to be imposed." . the result of this approach was that the following reasoning of the Tribunal (at 63) was erroneous: "In future there will be further information available about the approach the Tribunal will take in this type of case. There are likely to be determinations in which the Tribunal has imposed conditions on the doing of the act. There may also be cases where a determination that the act not be done is forced on the Tribunal for the reasons outlined above. These determinations will inform the Tribunal's consideration of the s 31(1)(b) obligation in the future. For the moment however there are no determinations of this kind and I do not consider it appropriate when considering the good faith negotiations issue to attempt to anticipate what the Tribunal might decide in arbitral determinations. Undoubtedly there will also be proposals to grant mining leases for the purpose of productive mining which will raise further issues about the scope of the obligation." . then it was said that the Tribunal erred in failing to consider whether the grant of the Mining Leases would give the grantee party the capacity to cause interference with the community life of a native title party, with sites of particular significance to them or major disturbance to land. Those are considerations which the Tribunal must consider (see s 237 of the Act) when deciding whether the expedited procedure is attracted in relation to a future act. There was no suggestion that the present matter involved the expedited procedure. . that the Government party's proposal did not promote an agreement about conditions which might be attached to productive mining. 6 Mr Ritter preceded these specific submissions with some general submissions. Those were to the following effect. First, that the Act is remedial in nature and must be construed beneficially for native title parties: Kanak v National Native Title Tribunal (1995) 132 ALR 329 at 331, 348; North Ganalanja Aboriginal Corporation v State of Queensland (1996) 135 ALR 225 at 226. This principle was said to be especially applicable to the native title party's right to negotiate, which was a valuable right - North Ganalanja at 253. The applicant relied on North Ganalanja as showing that the purpose of the Tribunal is to facilitate negotiation, discussion and agreement if at all possible, that the object of the procedures in the relevant subdivision is to produce agreement and that the Act indicates a legislative preference for resolving problems, created by a pending native title claim, by negotiation. The applicant submitted that those sections of the Act which concern the content of the right to negotiate should not be narrowly construed. They should, so it was argued, be broadly construed to increase the prospect that decisions about future acts could be agreed. A narrow construction of those sections would be contrary to the intent of the Act by decreasing the possibility of agreements being reached and impinging upon the benefits accorded to native title parties by the right to negotiate. The Government Party's Contentions 7 The Government party submitted that the words "negotiate in good faith" should be interpreted in accordance with their ordinary and natural meaning in the context of s 31 of the Act and of the Act as a whole. It submitted that the legislative context in which those words were used in the Act was unique and that there was nothing to be gained from looking to other statutory or common law contexts for the purpose of ascertaining their meaning. The relevant negotiations, described in s 31, were "with a view to obtaining the agreement of the native title parties to" the doing of the act with or without conditions. The Government party and the grantee party having already made up their minds to do the act, were negotiating with the native title parties to get them to agree to their native title rights (or claimed native title rights) being affected. There was, so it was submitted, no obligation on the Government party to negotiate about not doing the act nor about doing a different act. There was no indication in the Act that the Government party must accept the native title party's position, nor that it could not have regard to its own interests when negotiating in good faith. There was no requirement that the parties reach agreement. If they did not reach an agreement then the outstanding issues would be finally resolved by the Tribunal. The Government party accepted that negotiation in good faith with a view to obtaining the agreement of the native title parties connoted an active and open participation with the other parties. In relation to grounds 1 to 3, the Government party submitted that the issue of productive mining had "receded rather into the background" when the matter was before the Tribunal. Mr T A Creewel, counsel for the Government party, conceded that there were submissions before the Tribunal relating to productive mining, but they were not "major submissions". Mr Creewel submitted that the Tribunal clearly took into account the grantee party's proposals relating to productive mining. Its reasons demonstrated what the Government party described in its submissions as an "… acute, consistent and ever-present awareness" of: . the productive mining issue i.e. the potential of the grant of the Mining Leases to lead to productive mining; . the significance of the potential for productive mining; . the desirability for the negotiation parties to address the productive mining issue during the course of negotiations; and . the subject of the negotiations between the parties relating to the potential for productive mining. 8 The Government party contended that it did make proposals to the applicant relating to the potential for productive mining. Those proposals were contained in its letters dated 20 November 1996 and 19 September 1997. The Tribunal had set out those proposals in its reasons and had considered them in detail. Although the Tribunal had said that the proposals "did not amount to much" in its reasons, that was evidence that it had taken the proposals into consideration. The weight to be attached to any such shortcoming had, so it submitted, to be determined in the circumstances of the case. Those circumstances were dominated by the difficulties of the legislative regime. The idiosyncrasies of the Western Australian legislative regime were such, so it was put, that it was impossible for any of the parties to make meaningful proposals concerning possible future productive mining. That was a completely unknown and unknowable factor at the continuing exploration stage of the project. In that situation, the Government party argued that the limited proposals made by it were not unreasonable and that no more extensive or more detailed proposals could have been expected to be made by it. In those circumstances the weight given by the Tribunal to its limited proposals was an appropriate amount of weight. The Tribunal's reasons disclosed an appreciation that at least from the time of a meeting held on 20 May 1997 and known as "the Minniara meeting", the grantee party and the applicant were engaged in direct negotiations relating to the possible productive mining stage. To that extent the grantee party's proposals complemented those of the Government party and relieved the latter of making proposals in that regard. The Tribunal had recognised that the lack of substance in the Government party's proposals relating to productive mining did not amount to a lack of negotiation in good faith on its part. This was because it was impossible to make proposals of any greater substance under the circumstances. The Tribunal had dealt at length with the conflict between the Mining Act 1978 (WA) and the Act and had concluded that in the particular circumstances it was difficult to see what the Government party could reasonably offer, at that stage, in addition to the four conditions already proposed to be included in the Mining Leases. Negotiating in good faith, so the Government party contended, had to be judged in the light of knowledge and information prevailing at the time of those negotiations. The Tribunal had not ignored the guidelines offered by s 39 of the Act, but had alluded to the impossibility of adequately applying them at the negotiation stage if the full nature of the future act was at that stage still completely unknown to all parties. Nor had the Tribunal failed to have regard to the matters set out in s 237 of the Act. The Tribunal had decided that it was inappropriate, in the absence of any definitive guidance from a higher court, for it to apply the principle explained in Dann v Western Australia (1997) 144 ALR 1by analogy to the right to negotiate. My Reasoning 9 The Tribunal was well aware that the grant of the Mining Leases led potentially to productive mining (see pp 4-7 of its reasons). It noted that a condition of the Mining Leases was to the effect that no such productive mining could commence until the lessee had submitted a plan of the proposed operations (and measures to safeguard the environment) to the State Mining Engineer for assessment and until his written approval had been obtained. The Tribunal found as a fact that most Mining Leases were not used for productive mining. The Tribunal set out the relevant portions of s 31 of the Act. It decided, in my opinion correctly, that the words "negotiate in good faith" must be given their normal meaning having regard to the statutory context and principles of statutory construction. It then referred to two dictionaries for the definitions of "negotiate" and "good faith". It concluded that negotiation involved communicating, having discussions or conferring with a view to reaching an agreement. It decided that while subjective honesty of purpose or intention and sincerity were essential to good faith negotiations, they were not necessarily sufficient ingredients of them. The Tribunal said that it was necessary to consider whether what was done was reasonable in the circumstances. The Government party, so it held, had to (it used the word "must") make every reasonable effort to negotiate and reach agreement with the native title parties (see p 11 of its reasons). Between pp 11 and 15 of its reasons the Tribunal set out certain propositions relating to the question of negotiating in good faith and in particular a list of useful indicia ("the Njamal Indicia" - so named after a then recent Tribunal determination under that name). It is apparent from the Tribunal's observations in relation to those propositions and indicia, that the Tribunal well understood its task. The Tribunal then reviewed the facts and contentions. The Tribunal identified 11 of the 18 Njamal indicia in respect of which it found that no reasonable complaint could be made about the Government party's negotiating behaviour. That finding was not the subject of major contention between the parties brought before the Tribunal, nor in this Court. The major contentions of the native title party had been with respect to the following indicia: . the Government party's adoption of what was said to be a rigid non-negotiable position throughout the negotiations; . alleged failure of the Government party to do what a reasonable person would do in the circumstances, particularly in relation to the substantive aspects of the negotiations; and . alleged failure of the Government party to make proposals in the first place. 10 The Tribunal then analysed what it described as "the procedural aspects of good faith negotiations". It examined the facts in considerable detail, including all meetings and relevant correspondence. In the course of doing this, the Tribunal extended its considerations to Njamal Indicia (v) and (xi), being alleged failure to respond to reasonable requests for relevant information within a reasonable time and allegedly sending negotiators without authority to do more than argue or listen, respectively. The Tribunal held that the Government party's letter of 19 September 1997 amounted to the making of procedural proposals as an integral part of negotiating in good faith and an essential prerequisite to attempting to obtain the agreement of the native title party to the doing of the act. It rejected the native title party's contention to the contrary. In my view, it was open to the Tribunal, on the evidence, so to conclude. The Tribunal then noted the Government party's preparedness to accommodate the native title party's concerns about the draft negotiation protocol, to some extent. In other matters it can be seen that again to some extent, or sometimes wholly, the Tribunal accepted that the Government party had engaged in unacceptable negotiating behaviour, inconsistent with good faith negotiations. The Tribunal then turned to what it described as "the substantive aspects of good faith negotiations". First, it examined the negotiations about the native title party's "fourteen concerns" which had been raised at a meeting at a place called "Four Corners Well" on 17 February 1997. The Tribunal found (at p 39 of its reasons) that the Government party had a general policy, which was given effect to in those negotiations, that it was only prepared to negotiate about issues which were related to the grant of the tenements which were the subject of the future act. The only thing that the Government party was prepared to do with respect to the fourteen concerns was, through the Department of Minerals and Energy, to refer them to other relevant agencies and provide replies to the native title party, that is, to act as a clearing house for information to the native title party about the issues which he had raised. There was thus, effectively, what the Tribunal described as a "stand-off between them on this issue". This was particularly so in relation to the native title party's request for a grant of land at Four Corners Well coupled with a request for expedition of that grant. Four Corners Well is some twenty to thirty kilometres from the land which is the subject of the proposed Mining Leases. The Tribunal then posed, as a question for it to determine, whether the Government party's refusal to negotiate on matters unrelated to the grant of the Mining Leases was justified, on the basis (as the Government party had submitted) that the obligation imposed by s 31(1)(b) of the Act did not require such negotiation. At p 44 of its reasons the Tribunal observed that the extent of the effect of any proposed act (i.e. "the future act") on native title must be of central relevance to any negotiations. It referred to s 33 of the Act as specifically providing that certain things might be included in those negotiations. It also referred to the provisions of s 38 and s 39 (and in fact set out the text of those provisions). It also set out, in considerable detail, the respective arguments and contentions of the Government party on the one hand and the native title party on the other. At p 48 the Tribunal said that it regarded the criteria in s 39 "as a reasonable practical guide" to what the Government party was required to negotiate about. It also noted that "obviously, there are also some others". It held that its assessment of whether the Government party had negotiated in good faith, was to be confined to consideration of those of the fourteen concerns which were related to the granting of the Mining Leases. It identified four such matters from the list of fourteen. The native title party (and indeed the grantee party) wished to negotiate, not only in relation to the Mining Leases, but in relation to ten additional tenements. The Tribunal found that issues concerning the ten additional tenements were sufficiently related to the proposed future act. But it concluded that in the circumstances, it was unreasonable to require the Government party to negotiate in good faith about them. This was because they had to be processed under the Mining Act and the Government party did not wish to negotiate in respect of such tenements until notice had been given under s 29 of the Act. In those circumstances, persons other than the native title party in the present matter might become registered native title claimants. The Tribunal held that the Government party's decision not to pre-empt this possibility by negotiating only with the native title party, was reasonable. The Tribunal said that it was not prepared to draw any adverse inference about the Government party's negotiating behaviour from the delay of some three months from the date of application for the ten additional tenements and the recommendation for their approval. The Tribunal then turned to the Government party's proposals and its alleged failure to make proposals to deal with productive mining (see p 56 of its reasons). It referred to the Government party's proposal letter dated 19 September 1997 which, as I have mentioned above, it described as "not amount[ing] to much". Then it referred to another proposal from the Government party, made at an earlier meeting on 20 January 1997. That was to impose four conditions in the Mining Leases (breach of which would have exposed the Mining Leases to forfeiture). The conditions are set out at pp 57-58 of the Tribunal's reasons. The Tribunal noted that there were no arbitral determinations by the Tribunal from which it could, in this case, consider the good faith negotiations by anticipating what a Tribunal might decide in arbitral determinations. The Tribunal then reached the conclusions which I have set out earlier in these reasons. 11 The issue for the Tribunal to decide was whether the Government party had negotiated in good faith with the native title party and the grantee party with a view to obtaining the native title party's agreement to the doing of the act either with or without conditions. That was, in my view, a question of fact: see the qualification to the fifth general proposition referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9-10 (which was referred to by the High Court of Australia in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395-396); Risk v Williamson (Federal Court of Australia, O'Loughlin J, 10 June 1998) at 25. In finding that the Government party had done so, the Tribunal decided to confine its assessment in relation to the fourteen concerns to the manner in which the Government party engaged in negotiations and the substance of those negotiations which the Tribunal considered were related to the doing of the act. That act was the granting of the Mining Leases and the rights which those leases conferred. The applicant contended that the Government party's conduct should not be assessed in such a narrow context, but in the wider context of anything which he saw fit to bring to the negotiating table as the suggested price for his agreement to the Government party granting the Mining Leases. If a native title party had asked for something obviously unreasonable, such as a holiday home in Europe (an example raised by his counsel in argument at the hearing before this Court), then, so the applicant contended, the Tribunal would have little difficulty in assessing the reasonableness or otherwise of the Government party's response to such a request when assessing whether the Government party had negotiated in good faith. 12 The question raised by ground 4 of the appeal is - did the Tribunal err in law in deciding to confine its assessment of the Government's response to the fourteen concerns to issues related to or connected with the grant of the Mining Leases or does the statutory obligation require the Government party to negotiate over matters whose only connection with the doing of that act is that the native title party has made the proposed act the occasion for such a demand? In my view, to answer that question the obligation to negotiate in good faith should be set squarely in the statutory context. The statutory context, as I see it, is the doing of an act, in this case the grant of Mining Leases. Parliament has provided a mechanism whereby "Future Acts" such as these proposed grants may be done, despite native title claims. Part of that mechanism is arbitration which may result in conditions being imposed on the doing of the act. The list of such potential conditions can be seen in s 39 of the Act. Section 39 lists criteria which the Tribunal must take into account when making its arbitral determination. I set out below that list: "(a) the effect of the proposed act on: (i) any native title rights and interests; and (ii) the way of life, culture and traditions of any of the native title parties; and (iii) the development of the social, cultural and economic structures of any of those parties; and (iv) the freedom of access by any of those parties to the lands or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the lands or waters in accordance with their traditions; and (v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions; and (vi) the natural environment of the land or waters concerned; (b) any assessment of the effect of the proposed act on the natural environment of the land or waters concerned: (i) made by a court or tribunal; or (ii) made, or commissioned, by the Crown in any capacity or by a statutory authority; (c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned; (d) the economic or other significance of the proposed act to Australia and to the State or Territory concerned; (e) any public interest in the proposed act proceeding; (f) any other matter that the arbitral body considers relevant." 13 It is true that the list is open-ended, but I think that it provides a very considerable degree of guidance to what Parliament required the Tribunal to consider at the arbitral stage when making its determination. At that stage its function is to determine whether the act may or must not be done and, if it may be done, whether conditions should be imposed. Accordingly, in my view, the above list also provides an indication in broad terms of what Parliament considers might be the appropriate subject matter of conditions which the Tribunal might impose upon the doing of the act [being one of the three matters for determination referred to in s 38(1)]. The list has as its common theme a relationship with the likely impact of the future act in question. It is also true that, in financial terms, the subject-matter for pre-arbitration negotiations, a condition precedent to arbitration, can be seen, by a comparison between s 33 and s 38(2), to be considerably wider in the former case. Section 33 includes within the scope of such negotiations a condition which has the effect of the native title party being entitled to payments worked out by reference to the amount of profits made, income derived or things produced by the grantee party as a result of doing anything in relation to the land after, in this case, the grant of the Mining Leases. Again there can be seen a direct relationship between the payments and the rights conferred by the future act. The Tribunal was well aware of this; it specifically referred both to s 33 and s 38. 14 In relation to ground 4, I agree with the Tribunal's reasoning and conclusions. In other words, I agree that when assessing whether a Government party has complied with its obligations under s 31(1)(b) to negotiate in good faith, its conduct should be judged in the context of matters related to or connected with the doing of the particular future act in question. That does not preclude the Government party or the native title party negotiating on other matters, if they see fit. In Strickland v Western Australia (Federal Court of Australia, 24 July 1998) at 22 and 25 R D Nicholson J observed: "The negotiations in good faith pursuant to s 31(1)(b) must be "with a view to obtaining the agreement of the native title parties to" the doing of the act with or without conditions. The subject of the negotiation is therefore to have the native title parties agree on one basis or another to their native title rights or claimed native title rights being affected by the act upon which the Government party has already resolved to embark." . . . I accept the submissions on behalf of the Government party it is not for a court or Tribunal to assess the reasonableness of each offer. What is required is the court or Tribunal apply the test of "negotiating in good faith", in accordance with the common understandings encompassing subjective and objective elements, to the total conduct constituting the negotiations. All those circumstances must be considered against the legal requirements of the phrase "negotiating in good faith". The reasoning of the Tribunal that negotiations in good faith require "reasonable substantive offers" requires, as submitted for the Government party, a further and unnecessary level of complexity and application to the interpretation of the words of s 31(1)(b). It is not necessary to have resort to any standard outside the words in the section itself. The question is whether the communications and other events as they have fallen out satisfy the legal standard of negotiating in good faith as required by s 31(1)(b)." 15 I respectfully agree with and, with one slight reservation, adopt the reasoning in the above passages. The slight reservation is that I think that if a Tribunal, as part of the overall assessment of whether the Government party has negotiated in good faith, finds it useful to consider whether any particular offer (or all offers for that matter) appears or appear to be reasonable, then it is open to the Tribunal to engage in that exercise. But that is not to say that it will always be obliged to do so. Much will depend on the circumstances of the particular matter. The Tribunal will be engaged on a factual assessment of the Government party's conduct and, in some cases, the reasonableness or unreasonableness of its proposals or offers may be relevant. In other cases there may be a difference between making reasonable offers and being reasonable in negotiating in good faith. As the Tribunal noted in Strickland (WF 97/4) the Tribunal is engaged at that stage of its proceedings in deciding a preliminary issue of good faith. In that context, concepts of reasonableness would not exclude the Government party from giving priority to interests of State and not agreeing to proposed concessions. At the later, arbitral, stage it is for the Tribunal to make the different decisions required by s 38 while taking into account the factors referred to in s 39 of the Act. I acknowledge that R D Nicholson J's above reasons do not decide the precise point at issue in this matter. 16 I think that it is useful in assessing the content of the Government party's obligation to negotiate in good faith to have regard to all of the obligations imposed on the Government party by s 31(1). The first obligation, imposed by s 31(1)(a), is to give all native title parties an opportunity to make submissions in writing or orally regarding the act (my emphasis). The obligation to negotiate in good faith, imposed by s 31(1)(b), is with a view to obtaining the agreement of the native title parties to the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties. The consistent and central reference points are "the act" and "the doing of the act". In Fejo v Northern Territory (1998) 156 ALR 721there was some mention of the content of such negotiation. I say that without intending any disrespect; it can be seen that this aspect was peripheral to the main issue in that case. In those circumstances, it would probably be wrong to place too much weight on what may have been descriptive background. However, in the joint judgment (of six Justices) there are these observations: "Provision is then made for negotiation about whether the proposed action may be taken and, if it may, on what conditions it may be done." [in par 19] … "…the right that is given is a right to negotiate about particular kinds of proposals, not any and every step that may be taken in respect of land which is the subject of a native title claim." [in par 23] These observations point to the subject matter of the negotiation as being the future act, whether it may be done and if so on what, if any, conditions. The applicant relied fairly heavily on that part of the preamble to the Act which refers to "…every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate", when read with ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth). In my opinion, it would not promote the object and purpose of the Act if the question whether the Government party had negotiated in good faith had to be assessed by reference to matters unrelated to the future act in question. This would tend to shift the focus of concerns away from what s 31 identifies as the central reference points which I have mentioned above. There would be a tendency for negotiations to be more protracted and, in turn, for the hearings before the Tribunal also to be protracted and time-consuming while the Tribunal considered and assessed any number of unrelated proposals. In that regard, it can be seen from s 36 that Parliament intended, as a general rule, that an arbitral determination should be made within four or six months (depending upon the type of future act) of the application to it. A wide-ranging enquiry at the start of the arbitral process would not contribute to satisfying the Parliamentary purposes reflected in s 36 of the Act. Finally, a Government party might be seen to be negotiating in good faith by making all kinds of inducements unrelated to the subject matter of the future act. It would not advance the interests of the native title parties in those circumstances to have attention diverted from what Parliament has broadly indicated in ss 38 and 39 as its areas of concern about future acts. I do not see a requirement that the subject matter of the negotiations be related to the future act in question as being inconsistent with the preamble to the Act, where the reference is to "…every reasonable effort" to secure agreement. If it is possible for present purposes to have regard to the preamble, as I think it is, (see, for example, North Ganalanja at 233, 253 and 266) then that does not necessarily mean, as the applicant's counsel contended, that s 31(1) should be construed as requiring the government party to make every reasonable effort to secure agreement or, indeed, as applying a higher obligation on the Government party than that which is imposed by s 31(1) i.e. to negotiate in good faith. "Every reasonable effort" is an apt description of input from all the parties involved (and the Tribunal) in the various processes provided for in Subdivision B of Division 3 of Part 2 of the Act. 17 In my view, the Tribunal did not err in law when it held that while there was no limitation on what the parties may voluntarily include in their discussions and any agreement, the obligation on the Government party to negotiate in good faith is to do so by way of making or considering proposals which are related to or connected with the doing of the future act (p 42 of its reasons) and its potential consequences (p 48 of its reasons). Accordingly, I reject Ground 4 of the application. 18 I now turn to Grounds 1, 2 and 3 of the application. In my view, a fair reading of the Tribunal's reasons discloses that it did take into account, as a relevant consideration, and did give proper consideration to the potential for the grant of the Mining Leases to lead to productive mining. Furthermore, it did give proper consideration to the substance of any negotiations between the Government party and the native title party about that matter. In terms of ground 3 of the appeal, the Tribunal did refer to the Government party's proposals in its letter dated 19 September 1997 and a proposal put forward by the Government party in relation to that matter i.e. the four conditions which it offered as additional conditions to be inserted in the proposed Mining Leases. The applicant's arguments, in essence, boil down to a complaint that the Tribunal did not give sufficient weight to these factors. The authorities confirm that generally the degree of weight which an administrative decision-making tribunal gives to any relevant consideration, is a matter for that Tribunal - see for example Coco v Deputy Commissioner of Taxation (1993) 115 ALR 670 at 675 and Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 at 441. The applicant submitted that the Tribunal erred (at p 62 of its reasons) in limiting its consideration of the reasonableness of what the Government party had done because of the "state of ignorance of what the Tribunal might determine as appropriate conditions to be imposed" at the productive mining phase. The Tribunal returned to this matter in the first full paragraph of p 63 of its reasons. I do not think that the Tribunal erred in the manner contended. It was placed in a situation where, at that time, there were no relevant arbitral determinations imposing conditions on the doing of a future act. Had there been such determinations, it can be seen from the Tribunal's reasons that it would have measured, to some extent, the Government party's conduct against such conditions when assessing whether it had negotiated in good faith. The situation is analogous to the gradual building up of a body of case law. If one has to assess whether a party has negotiated in good faith in relation to a particular matter where it would be appropriate to measure what was done against the likely outcomes of a court decision, based on a body of case law, that is one thing. However, if the case law has not developed, then a court must do the best it can. Likewise with the Tribunal. It did not have a body of determinations, so it did the best it could in the circumstances when it assessed what the Government party had done in the way of negotiations in relation to the possibility of productive mining. In my view, no error of law has been exposed in respect of the matters raised in grounds 1 to 3 of the appeal. In my opinion, the present matter is very different from Vaitaiki, on which the applicant relies. This is not a case in which the Tribunal said that it considered a factor, but could be seen not to have done so. A fair reading of the Tribunal's reasons shows that it had squarely in mind the problem of the potential for the second respondent to engage in productive mining when it assessed whether the Government party had negotiated in good faith. The Tribunal's reasons can be compared favourably with a set of judicial reasons for judgment, a standard well in excess of what was required. Ground 5 - Whether there was evidence to support the Tribunal's finding that the Government party's proposal of 19 September 1997 included the four conditions mentioned at the meeting of 20 January 1997 19 There was no dispute between the parties that at a meeting between them on 20 January 1997 (at which they negotiated), the Government party proposed to impose four conditions additional to those which had been included in its earlier letter dated 20 November 1996 to the applicant. Those four additional conditions were: "Any right of the native title party to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities. If the grantee party gives a notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application exclusive of sensitive commercial and cultural data, on the native title party. Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental or productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure including proposed access routes. Upon assignment of the mining lease the assignee shall be bound by these conditions." The Tribunal noted that the insertion of these four conditions in the Mining Leases was not referred to in the Government party's proposal letter of 19 September 1997. However, it found that there was nothing to suggest that the proposal to insert the four conditions had been withdrawn. The Tribunal found as a fact that these conditions formed part of what the Government party was prepared to do to obtain the agreement of the native title party to the doing of the future act. 20 There was no evidence that this offer was expressly withdrawn at any time. Nor was there any evidence that the offer of these four conditions would expire if not accepted by any particular time. I accept the first respondent's submission that the offer of the four conditions was not inconsistent with the further proposals made in its letter of 19 September 1997. I do not think that it is necessary to characterise the situation, as the first respondent did, in strictly contractual terms. The Tribunal referred to the offer of the four conditions as proposals which it found formed part of what the Government party was prepared to do to obtain the agreement of the native title party to the doing of the act. With respect, that seems to me to be an entirely appropriate approach. The Tribunal found as a fact that there was nothing to suggest that the proposals had been withdrawn and that they formed part of what the Government party was prepared to do. In the absence of any express or implicit withdrawal of that offer, I do not think that the Tribunal erred in law in so finding. I reject this ground of appeal. Ground 6 - Whether the Tribunal erred in law when it decided that the failure of the first respondent to disclose to the applicant the contents of a policy, referred to in a letter dated 12 November 1997 to the third respondent, was "not of great weight". 21 At p 30 of its reasons, the Tribunal considered a contention by the applicant that the Government Party had unreasonably failed to disclose a policy (referred to in a confidential letter dated 12 November 1997 from the first respondent to the Tribunal - "the Confidential Letter"). In the Confidential Letter there was set out an extract from a paper given by a Mr Cedric Wyatt, Chief Executive Officer of the first respondent's Aboriginal Affairs Department, at a conference in 1997. That extract can be seen at p 28 of the Tribunal's reasons. It would appear that the policy was not to use the Act as a process for selecting priority for the expenditure of government funds available to Aboriginal people, i.e. as a priority for addressing the needs of the particular native title parties. At p 30 of its reasons the Tribunal accepted that: "…it would have been preferable and consistent with good faith negotiations for the Government party to have ensured that this paper [Mr Wyatt's paper] containing details of its general negotiating position was made available to parties to the various negotiations in which it was engaged including this one." Then the Tribunal said this: "However there are factors which lead me to conclude that its failure to do this is not of great weight in the circumstances. Firstly, the policy which informed the Government party's negotiating position was not a secret one as it had been revealed at a public forum. Secondly, the policy did nothing more than outline the position taken by the Government party in the negotiations which would have been readily apparent to the native title party." 22 In my view, by raising this ground the applicant attempted, under the guise of a question of law, to revisit the merits of the Tribunal's decision. First, the applicant said that there was no evidence that the views expressed by Mr Wyatt were those of the first respondent, as opposed to his private views. The applicant said that they may have been "simply the personal views of a government bureaucrat". In my opinion, a careful reading of the extract from Mr Wyatt's paper, set out at p 28 of the Tribunal's reasons, makes it quite clear that it was open to the Tribunal to find (if indeed it did so) that Mr Wyatt was expressing the first respondent's approach to future act negotiations. That was the whole basis of the native title party's contention before the Tribunal, i.e. that this was government policy being revealed in Mr Wyatt's paper. Then the applicant attacked the Tribunal's second reason for concluding that the Government party's failure to ensure that Mr Wyatt's paper was made available to the parties was "…not of great weight in the circumstances". The second reason (as I have mentioned above) was that the policy did nothing more than outline the position taken by the Government party in the negotiations and that this would have been readily apparent to the native title party. To this the applicant said that the Tribunal was wrong, because the policy indicated the reasons why the first respondent had adopted "a certain position". Unless, so it was put, the applicant knew the reasons for the first respondent taking that position, it was unable to make representations to it to dissuade the Government party from following the policy in question. 23 I doubt whether, in the context of judicial review, it is appropriate for me to agree or disagree with the Tribunal's second reason for not giving great weight to this factor. However, in case it is appropriate, I should say that it was well and truly open to the Tribunal to make that assessment of the policy, i.e. that it simply outlined the position taken by the Government party. Secondly, I reject the applicant's submission that the disclosure of the policy would have better equipped him to make further submissions to the Government party. In my view, this ground of appeal, by seeking to attack the weight given to the Tribunal to a particular matters, does not raise any error of law. The matter was one of many matters which the Tribunal can be seen to have weighed on an overall basis when deciding the question whether the Government party had negotiated in good faith. It found in favour of the applicant in relation to this particular matter, but decided not to give it great weight. In my opinion, in so deciding the Tribunal did not make a reviewable error. Conclusions 24 For the above reasons, the application will be dismissed. I will hear counsel on the question of costs. I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

Associate: Dated: 6 January 1999 Counsel for the Applicant: Mr M.T. Ritter

Solicitor for the Applicant: The Aboriginal Legal Service of Western Australia (Inc)

Counsel for the First Respondent: Mr T.A. Creewel

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

Date of Hearing: 25 September 1998 Date of Last Written Submissions: 29 October 1998 Date of Judgment: 6 January 1999