"... 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"
In other words, to identify the agreement referred to as "such agreement" in s.35 one tracks back through section 34 to section 31(1)(b). The agreement is defined in terms of what it permits not in terms of how it was reached. It would, in my view, be "such" an agreement even if it were reached before the Government party started to negotiate in good faith.
I now return to the question whether there is such a condition precedent to the making of an application under s.35.
Put slightly differently, may the Tribunal proceed to determine an application made under s.35 if six months has expired since the giving of the notice but the Government party has not complied with the obligation imposed upon it by s.31(1)(b)?
The applicant relies upon the following passage in the reasons for judgment of Dixon J. in R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers & Ors (1949) 78 CLR 529 at p.550:
"... an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."
In my view, that case is to be distinguished from the present matters. In Wallis the High Court held that where two provisions in the one Act [the Conciliation and
Arbitration Act 1904 (Cth)] each conferred power, one in general terms but the other in more particular terms which also prescribed the mode in which the power was to be exercised, then the latter should be treated as the source of authority to the exclusion of the more general provision. The decision simply identified which of two possible sources of power was to apply to the proposed insertion of certain clauses in the industrial awards concerned. In my opinion, the case does not assist in resolving the question in this matter. It is common ground that the obligation to negotiate in good faith is imposed upon the Government party in mandatory terms. The question is whether compliance with that obligation is a condition precedent to the making of an application under s.35?
The applicant's principal submission in that regard is that the importance of the right to negotiate coupled with the mandatory language in which s.31 is expressed give rise to such a condition precedent.
It should be noted that the question is not whether the obligation imposed by s.31(1)(b) on the Government party is mandatory or directory or whether substantial compliance with its terms is sufficient. The case was conducted on the basis that the subsection imposed an obligation in mandatory terms on the Government party to negotiate in good faith. In my view that is perfectly clear from its language. The respondents conceded that (see page 85 of the transcript).
The Government party submits that if Parliament had intended there to be such a condition precedent, it could readily have provided it. Instead, as the Government
party puts it, ss.147, 148 and 149 constitute a code by which future act determination applications may be dismissed. The Government party submits that in a situation where it negotiated in good faith but another party did not, it would be "a ludicrous outcome" if the Government party would be precluded from making an application under s.35. The short answer to this latter submission is contained in my remarks below concerning when negotiation in good faith can be said to commence. The Government party relied upon the decision of Olney J. sitting as a Deputy President of the National Native Title Tribunal in the matter of Associated Goldfields NL and Alkane Exploration NL (Application NNF 94/1, 6 February 1995). In that matter which, like these matters, concerned the application of Subdivision B of Division 3 of Part 2 of the Act to the proposed grant of a mining lease, the following issues arose:
. whether the Government party's newspaper advertisements were adequate?
. whether one of the parties had become a registered native title claimant within time?
At p.5 of his reasons his Honour expressed the opinion that:
"... the Registrar having accepted the applicant's future act determination application, it is the Tribunal's duty to take all reasonable steps to make a determination in relation to the proposed future act within the period of six months starting when the application was made. Such is the statutory obligation imposed by s.36(1)."
Again at p.30 of those reasons there is the following:
"Assuming for present purposes that it would be appropriate for the Tribunal to take into account matters such as whether the government party had strictly complied with s.29(2) or s.29(3), or indeed, whether the period specified in s.35 had expired before the application was made, those matters could, in my opinion, only be considered in the context of
the exercise by the Tribunal of its function to make a determination and not by way of a preliminary objection going to the jurisdiction of the Tribunal to make the determination.
The authority of the Tribunal to make a determination is dependent upon first, an application for a determination being made and accepted and second, upon the absence of an agreement in accordance with s.34. The Act does not specify any procedural requirements in relation to the steps to be taken by the Tribunal in exercising its functions under s.38(1)."
And at p.31:
"The arguments presented to the Tribunal raise a variety of issues which are not within the authority of the Tribunal to resolve. If the appropriateness of accepting Mr Towney's application is to be tested, procedures are available by way of judicial review for that to be done. The same applies if it is sought to dispute the validity of the applicant's application.
So far as the Tribunal is concerned, there is before it an application for a future act determination and that application should proceed."
It is clear from the above that, sitting in his capacity as a Deputy President of the Tribunal, his Honour was not prepared to consider whether its jurisdiction had been validly enlivened. His Honour was certainly not considering whether, as a matter of law, there were any particular conditions precedent to the right of a negotiation party to make an application under s.35 for a determination.
In my view, one of several tests which assist in the resolution of this matter is to consider what the Tribunal should do if the s.35 application (the making of which is expressly conditional upon the expiry of a period of six months) had patently been made within that time? In those circumstances, in my opinion, a Tribunal should hold that the applicant was not entitled to make the application, the Registrar should not have accepted it, the Tribunal had no jurisdiction to embark upon an inquiry and the
application should be dismissed under either s.147 or s.148 or both.
Similarly (with great respect to the views expressed by Olney J. with whose views I feel, reluctantly, obliged to differ on this point) if, as a matter of construction, there is a condition precedent of the type contended for by the applicant and a question arises upon that matter, then the Tribunal is obliged to consider it and decide whether the condition precedent to its jurisdiction has been satisfied. If the condition precedent has not been satisfied then a negotiation party applicant under s.35 would be unable to make out a prima facie case and the application should be dismissed under s.148. The Government party submits that ss.147 and 148, properly construed, only apply to an application under s.61 of the Act i.e. a native title determination. In my opinion that cannot be so. Both s.147 and s.148 refer to an "... inquiry relating to the application ...". Section 139 (which appears in the same subdivision as those two sections) refers to inquiries into two categories of applications. One of those categories is a "right to negotiate application" covered by s.75. One of the two types of applications covered by s.75 is an application under s.35 for a determination in relation to a future act. Mr P.C. Van Hattem, counsel for Western Mining, expressly disclaimed the argument that s.147 and s.148 had such limited scope as that contended on behalf of the Government party.
The Government party submits that the time limits prescribed by s.35 were intended to be "tight" and "finite". In the event that the Government party failed to negotiate in good faith that, so it is put, is not to be the subject of the "penalty of blocking a future act determination from proceeding". Each of the respondents refer to the time
constraints placed upon the Tribunal and the practical difficulties and delays which would result if the Tribunal were obliged to ascertain whether the Government party had in fact negotiated in good faith. The applicant's response is threefold. First, the relevant portion of the second reading speech refers to time frames which are "tight but fair". "Fair" meant that there had to be good faith negotiations. Secondly even if this, on occasion, involved difficult questions of degree, that would not be a reason for ignoring Parliament's intention that the Government party should negotiate in good faith. Thirdly, so the applicant submits, the reality is that the facts "could be laid out rather simply and the jurisdictional question addressed" by the Tribunal.
It is apparent from the scheme of Subdivision B of Division 3 of Part 2 of the Act that Parliament intended that the question whether a future act may be done or may be done conditionally should be decided in a timely manner. References in ss.30, 35 and 36 to periods measured in months and the requirement expressed in s.36(2) confirm this. There is obviously a risk of that intention being thwarted if proceedings before the Tribunal get bogged down with the adducing of evidence and the hearing of argument on the question whether the Government party has negotiated in good faith.
However, I do not think that those considerations are sufficient to preclude compliance with the Government party's obligation to negotiate in good faith from being a condition precedent to the making of an application under s.35. The question of such compliance may not be in issue in every case. Where that matter is not in contention, the Tribunal may be content to accept the parties' confirmation that the Government party has negotiated in good faith. Where there is a dispute, it should not be long
before a reasonably clear picture emerges from Tribunal decisions about the content of the requirement that the Government party negotiate in good faith. Thereafter, any such disputes are likely to proceed as relatively straightforward preliminary questions of fact. The liberal provisions of s.109 of the Act concerning the Tribunal's way of operating should assist in that regard. In my view, it is likely that the Tribunal will devise methods for rapid determination of this preliminary issue so that time will not be unnecessarily consumed. The Tribunal is well placed to recognise and deal with delaying tactics should they be employed.
Another submission, made by all three respondents, is based on the fact that any negotiating party (not only the Government party) may make an application under s.35. They submit that it would be wrong to preclude a native title party or a grantee party from making an application under s.35 simply because of default by the Government party in respect of its obligation to negotiate in good faith.
It is quite clear that any negotiation party may apply under s.35. I accept that there may arise occasions when a native title party or a grantee party may wish to bring the matter on for determination as soon as possible. I was referred to sections in the Mining Act 1978 (W.A.) which have the effect that ground held under prospecting licences or exploration licences may continue to be held pending the determination of an application for a mining lease over the same ground. Depending upon the circumstances, that might not be in the interests of a native title party. On the other hand, there may be situations in which the grantee party is anxious to move the matter forward as soon as possible so that a mining title may issue.
However, I think that I am entitled to infer that there will not be many cases in which a Government party is deliberately obstructing a statutory process by failing to comply with an obligation imposed upon it in such mandatory terms. I take into account also the fact that the statutory process is one which the Government party itself sets in train so that it may do a future act. Secondly, as the High Court explained in the passages which I have set out above from North Ganalanja, the purpose of Subdivision B of Division 3 of Part 2 of the Act is to maintain the status quo unless there is an agreement or a determination. The Subdivision also indicates a purpose that the question whether a future permissible act may be done should involve all three negotiation parties. In s.31(1)(b) this is expressed as an obligation on the Government party to negotiate in good faith with the native title parties and the grantee parties. In s.32(5) it is expressed as a request from the arbitral body that the Government party and the grantee parties negotiate in good faith with the native title parties. If a situation arises in which either a native title party or a grantee party wishes to move on to the determination stage (six months having expired) but the Government party is refusing to negotiate in good faith, either of those parties can initiate and invite such negotiation. In fact, that initiative could be taken much earlier. It is difficult to imagine the Government party remaining obdurate in those circumstances. However, if it did, recourse could be had to relief of a prerogative nature. In my opinion, the possibility of such a situation arising does not justify rejection of the submission that the obligation to negotiate in good faith is one of the conditions precedent to the making of an application under s.35.
Each of the three respondents point to the existence of curial remedies available,
should a Government party fail to observe its obligations to negotiate in good faith, as justifying their contention that that obligation is not a condition precedent to the making of an application under s.35. The applicant also relies on the availability of such remedies in support of its contention to the opposite effect. The applicant contends that it would be "plainly ridiculous" to have a situation in which the native title party was entitled to relief in the form of a writ of mandamus requiring the Government party to negotiate, yet the Tribunal would be entitled "blithely to proceed to determine" the application under s.35 on the basis that non-compliance with s.31 was of no relevance to its function or the exercise of its powers or jurisdiction.
In my view, the availability of alternative methods of enforcing the obligation expressed in s.31(1)(b) does not, in the context of this particular legislation, assist in resolving this point of construction. I regard the factor as being a neutral one. On the one hand, as the respondents contend, it tends against construing the obligation as being a condition precedent. On the other hand, the burdensome requirement (upon in this case the native title party) to take collateral proceedings to enforce conduct expressly and mandatorily dictated by Parliament as being a step in the future act process, weighs equally on the other side of the scales.
The Government party relies upon the absence of any express power to dismiss a future act determination application if the Government party has not negotiated in good faith. If Parliament had intended this, so it is put, Parliament could readily have so provided. This was consistent with the approach taken by the Tribunal. In my opinion, the answer to that argument is that not every condition precedent to the
making of an application under s.35 of the Act is expressed as being such. For example, none of the respondents contended that an application under s.35 could be lawfully decided if the Government party had failed to give notice in accordance with s.29 of the Act.
In the area of town planning law there is authority, at the highest level, that a planning authority may not lawfully decide an application unless statutory requirements concerning the giving of public notice have been complied with: Scurr v. Brisbane City Council (1973) 1 ALR 420 at pp.421 (Menzies J.), 421-422 (Gibbs J.) and Stephen J. generally (with whom all of the Court was in agreement). The applicant relied upon that decision. In that case, s.22 of the City of Brisbane Town Planning Act 1964 (Qld) provided that before signing an application of the type referred to in that section, the Council had to cause public notice to be given of such an application by way of a published advertisement. The section thus contained an express condition precedent to the exercise of the statutory power. The case fell to be decided on the question whether sufficient "particulars of the application" had been provided in the notice published by the Council. The High Court held (unanimously) that sufficient particulars had not been provided. On the contrary, the advertisement was positively misleading. When Stephen J. at p.429 observed:
"The legislation employs mandatory language, making the giving of public notice a condition precedent to any consideration of the application by the Council and the section is wholly dependant upon the giving of public notice for the attainment of its objects."
his Honour was, I think, simply drawing attention to the express condition precedent rather than deducing that the employment of mandatory language gave rise to such a
condition precedent. His Honour later found that there was no difference in that matter between what was required by a mandatory interpretation of the section or a directory one which would allow for substantial compliance. In fact, an interesting twist to his Honour's conclusions (see p.431) was that an appeal to the Local Government Court lay whether or not public notice had been given in accordance with law. In those circumstances, so Stephen J. explained, the duty of the Court would have been to reject the application, not because of any particular objections based upon town planning considerations but because the public notice requirements had not been observed.
Mr Donaldson submits that it is not for this Court to imply a condition precedent into the Act where there is no such express condition. In my view, the answer to that submission is that to require compliance with the obligation contained in s.31(1)(b) before an application may be made under s.35, is not to imply a condition precedent. All that is involved is a statutory construction which gives effect to an express Parliamentary stipulation. No implication of any condition is required.
Mr Van Hattem submits that the obligation contained in s.31(1)(b) should not take effect as a condition precedent to an application under s.35, because negotiation in good faith is predicated on the native title party making a submission under s.31(1)(a). I do not think that is the case. I can see no logical reason why a Government party would have to defer initiation of negotiations in good faith until such time as the native title party had made submissions to it in writing or orally under s.31(1)(a). Mr Van Hattem also points to the requirement in s.31(2) that the Tribunal, if so requested by
any negotiation party, must mediate among the parties to assist in obtaining their agreement. Is this to be also a condition precedent to the making of an application under s.35? It is not necessary to decide that question for present purposes. It can be left for another day. The answer may depend upon the relative importance of that requirement in the statutory scheme.
The applicant submits that Subdivision B of Division 3 of Part 2 of the Act was intended to be read as a whole, sequentially and not out of context. I accept that submission. There are only two basic obligations imposed upon the Government party by the Subdivision. The first is to give notice in accordance with s.29 and the second is to comply with the requirements of s.31(1). Both obligations are expressed in mandatory terms including the word "must". Mr Van Hattem sought to distinguish the former obligation as one in respect of which compliance was entirely within the power of the Government party without co-operation from any other party. He submitted that s.31 was very different in that regard. The obligation under s.29 was, so it was put, important and central to the process relating to permissible future acts. Failure to comply with the notice provisions might, so the submission proceeded, exclude people who ought to be involved in that process. Furthermore, so it was submitted, there was a practical difficulty. Compliance with the notice requirements of s.29 was something which could be decided objectively. Whether there had been compliance with a duty to negotiate in good faith involved questions of degree.
With all due respect to the careful and concise manner in which these submissions were put, I do not think that there is any substance in the distinctions which Mr Van
Hattem sought to draw between the obligations expressed in s.29 and those expressed in s.31(1)(b). The term "negotiate" is relevantly defined in the New Shorter Oxford English Dictionary (1993 ed.) (at p.1900) as:
"[to] Communicate or confer (with another or others) for the purpose of arranging some matter by mutual agreement; have a discussion or discussions with a view to some compromise or settlement..."
The Macquarie Dictionary (2 ed.) (at p.1192) has the following entry in respect of "negotiate":
"1. to treat with another or others, as in the preparation of a treaty, or in preliminaries to a business deal.
2. to arrange for or bring about by discussion and settlement of terms..."
Obviously, negotiating usually includes bilateral communication. To the extent that negotiation in good faith required communication from the native title parties and the grantee parties to the Government party, then one can accept that its existence did not depend entirely on the Government party. However, in my view negotiation may come into existence before there is any response to the initial approach of a negotiator. In other words, a communication from a Government party to a native title party and a grantee party setting out proposals for obtaining the agreement of the native title party to the doing of the act or the doing of the act upon conditions, would mark the beginning of negotiation in good faith. If there were responses, then the timing and nature of the responses (including their reasonableness in the circumstances) and the manner in which the Government party dealt with such responses would determine whether the Government party had continued to negotiate in good faith. If there were no responses then perhaps the extent to which the Government party followed up its
initial approach might be relevant.
All that was said about the importance of the notice provisions contained in s.29 applies equally, in my view, to the obligation imposed by s.31(1)(b). The matter of negotiation is clearly important and central to the permissible future act process. Failure to comply with the obligation to negotiate in good faith could be just as exclusive, in practical terms, as failure to give notice to such parties. Even the proper giving of notice can, on occasion, involve questions of degree. Scurr v. Brisbane City Council demonstrates that.
The situation, as I see it, is that Parliament has dictated in the clearest mandatory terms (including the use of the word "must") that a certain process or activity should take place as part of the procedure leading to the possible doing of a future act. That process (negotiating in good faith) is of central importance. Then there is provision for the next stage of that procedure - an application to the Tribunal for a determination of that matter in the absence of any such agreement. The only condition precedent expressed in s.35 to the making of that application is that, in this matter, six months has expired since the giving of notice under s.29. The respondents make much of the fact that there is no express condition precedent within s.35 itself to the effect that the Government party has negotiated in good faith. The Tribunal also considered that omission to be important. With respect, I disagree. It was sufficient, in my view, for Parliament to have made its will on the matter known some four sections earlier. That was a sufficient statement of a condition precedent. It would have been unnecessarily repetitious to have re-stated it in s.35. Furthermore, it is almost unthinkable that the
Government party might not obey such a mandatory command. There must have been a strong presumption that the Government party would comply with its obligations under s.31(1)(b). On the other hand, it was necessary to refer to the expiry of the six month period. That was a new matter to be added to the relatively few procedural steps which are required before those concerned will know whether the future act is to be done, done subject to conditions, or not done at all.
Conclusion
For the foregoing reasons I have come to the conclusion that if the Government party has not complied with its obligation under s.31(1)(b) to negotiate in good faith with the other negotiation parties (a matter which has not yet been decided) then none of the parties may move to the next stage of making an application under s.35 for a determination. Accordingly, in my opinion the Tribunal erred in law in deciding that it did not have power to dismiss such an application on the ground that the Government party had not negotiated in good faith. The error of law falls within s.5(1)(f) of the ADJR Act. In those circumstances it is not necessary to consider whether prerogative relief might also be available at common law. The Tribunal's decision not to consider the matter should be set aside. The matter should be remitted to the Tribunal to decide whether the Government party has complied with that obligation. If the Government party has not so complied then the application is invalid and should be dismissed under s.148. If the Tribunal finds that there has been such compliance then the normal procedures of inquiry and determination should take place as required by the Act.
I certify that this and the preceding thirty-three
(33) pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 20 June 1996
Counsel for the Applicant: Mr M.L. Barker Q.C.
Solicitor for the Applicant: The Aboriginal Legal Service of
Western Australia (Inc.)
Counsel for the First Respondent
in each Application: Mr G.R. Donaldson
Solicitor for the First Respondent Peter Apostolos Panegyres
in each Application: Crown Solicitor for the State of
Western Australia
Counsel for the Second Respondent
in Application WAG 6004 of 1996: Mr P.C. Van Hattem
Solicitors for the Second Respondent
in Application WAG 6004 of 1996: Freehill Hollingdale & Page
Counsel for the Second Respondent
in Application WAG 6005 of 1996: Mr C.P. Stevenson
Solicitors for the Second Respondent
in Application WAG 6005 of 1996: Mallesons Stephen Jaques
Date of Hearing: 4 June 1996
Date of Judgment: 20 June 1996