Walley v Western Australia

REASONS FOR JUDGMENT HIS HONOUR: The applicants appeal from a decision of the National Native Title Tribunal ("the Tribunal") constituted by the Hon CJ Sumner given on 5 December 1997 and supported with reasons dated 10 December 1997. The decision was to the effect that the jurisdictional pre-conditions had been satisfied to the lodging of an application by the first respondent ("the Government party") pursuant to s 35 of the Native Title Act 1993 (Cth) ("the NT Act") on 20 August 1997 for a determination in relation to a proposed compulsory acquisition of land over which native title is claimed. The central issue in the appeal is whether the Tribunal erred in law in concluding the Government party had negotiated in good faith. Statutory requirements The NT Act provides that where the Commonwealth, a State or Territory (described in the NT Act as the Government party) proposes to do certain permissible future acts (including the compulsory acquisition of native title rights and interests for the purpose of conferring rights and interests on persons other than the Government party) ("the act"), the "right to negotiate" provisions in subdiv B, of Div 3, of Pt 2 (ss 26‑44) of the Act apply, and must be followed to ensure that the act can be validly done. In summary, the Government party is required to give notice of its intention to do the act (s 29). A "native title party" is defined to include any registered native title claimant in relation to the land or waters that will be affected by the act (s 29(2)(b)). A "grantee party" is a person who has requested or made application for the act to be done (s 29(2)(d)). Any one of them is described as a "negotiation party" (s 253). Section 31(1) provides: "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; and (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." The expedited procedure is not said to be attracted in the present instance. The content of negotiations is to be considered in relation to s 33 which provides: "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." In the case of the compulsory acquisition of native title rights and interests any negotiation party may apply to the arbitral body (in this case the Tribunal) for a determination in relation to the act if there is no agreement within six months of the notice being given - s 35(b). The arbitral body must not make a determination where it receives a copy of an agreement reached in accordance with the obligation in s 31(1)(b) or a parallel obligation in s 32(5) referrable in the case of an expedited procedure (ss 34, 37). Unless an agreement is reached by the negotiation parties and a copy of it given to the Tribunal, the Tribunal must conduct an inquiry and make one of the following determinations, namely, that the act must not be done, that the act may be done, or that the act may be done subject to conditions to be complied with by any of the parties (ss 34, 37, 38). The Tribunal must take all reasonable steps to make a determination, in the case of a compulsory acquisition, within six months of an application being made (s 36(1)(b)) and advise the Commonwealth Minister if it does not do so (s 36(2)). Section 39 sets out the matters that must be taken into account in making a determination. Native title claims On 19 April 1994 Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga peoples ("the Maduwongga native title party") made application for determination of native title (WC 94/3). On 27 July 1995 Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson, Clem Donaldson for their respective (Gubrun) families ("the Gubrun native title party") made application for determination of native title (WC 95/27). On 2 February 1996 Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of the Mingarwee (Maduwongga) people ("the Mingarwee native title party") made application for determination of native title (WC 96/10). Each native title party was registered by the Tribunal as a native title claimant in relation to the whole of the land to which the compulsory acquisition related and was so registered at the time that notice was given under s 29 of the NT Act of the proposed compulsory acquisition. The Gubrun native title party and the Mingarwee native title party appear as the second and third respondents respectively. The third respondents elected to make no submission. The second respondents, other than Mr C Sambo and Mr G Wilson, were represented but elected to make submissions only on a notice of contention brought on behalf of the first respondent ("the notice of contention"). Future act The land in relation to which Government party proposes to compulsorily acquire all the native title rights and interests is in the Shire of Coolgardie in Western Australia. It is described as Jaurdi locations 80, 81 and 82 (being vacant crown land except for certain mining tenements issued under the Mining Act 1978 (WA)) and is located approximately 13 kilometres north east of Coolgardie and 26 kilometres south west of Kalgoorlie south of the transcontinental rail line. The purpose of the acquisition is to enable the establishment of a heavy industrial estate ("the Mungari Industrial Park"). The land was acquired from the Mungari and Mt Burgess pastoral stations, following an assessment and analysis in 1990 of potential industrial sites. The area was identified in 1992 as a suitable site for the purpose of facilitating regional industrial activity in the Goldfields. Environmental approval to proceed was given in 1993. It is sought to effect the acquisition pursuant to the Land Acquisition and Public Works Act 1902 (WA) which authorises acquisitions for industrial and public purposes where the use and development of the land will confer an economic or social benefit on the State or relevant region or locality. Notice of the proposed acquisition has been given under that Act. On acquisition the Minister of Lands will grant freehold title to the Western Australian Land Authority ("LandCorp") a statutory authority established by the Western Australian Land Authority Act 1992 (WA), which will develop, subdivide and dispose of the land to private interests for industrial purposes. Initially there were three compulsory acquisition proposals. These were a sub-divisional development including the provision of services (such as water, power, roads), land for light industrial purposes and a sub‑divisional development including the provision of services (such as water, power, roads, sewerage) and land for housing, recreational, public, community and commercial purposes, and an explosives reserve and solid industrial waste disposal site near to the Mungari Industrial Park. Since April 1997 the application by the Government party for compulsory acquisition relates only to the Mungari Industrial Park. Communications between parties Communications between the parties were conducted for the Government party through representatives of the Department of Land Administration ("DOLA") and LandCorp. On 28 June 1996, DOLA sent to all native title parties a letter which: · contained a plan of the area to be acquired; · stated that the 'negotiation process provided for under the Native Title Act (NTA) now commences...'; · set out what the Minister or Lands is required to do under s 31(1) of the NT Act; · indicated that negotiations should be completed within six months of 11 April 1996; · invited the parties to contact DOLA within 21 days of the letter if they wished to make a submission in relation to the matter; · attached a document summarising the background of the proposal; · advised that DOLA officers were available to explain the State's position in more detail; and · pointed out that the parties may request the Tribunal to mediate among the parties. On 30 July 1996 the representative of DOLA wrote to the Maduwongga native title party suggesting a meeting to outline the project, answer questions and have discussions on how the project might be progressed. On 20 August 1996 the solicitor for the Maduwongga native title party ("the Maduwongga solicitor") responded. Following this, a letter was sent on behalf of DOLA confirming the earlier offer of a full briefing and making suggestions about times when it might occur. The letter also advised the State had asked the Tribunal to mediate on the proposal. On 30 October 1996 DOLA wrote to the solicitor for the Maduwongga solicitor responding to requests made on their behalf for plans and aerial photographs. The letter also included the following document described as 'an extract from my [the DOLA's representative's] file that outlines the position of DOLA in relation to the residential and light industrial developments in Kalgoorlie'. " LAND ACT PROPOSALS IN THE CITY OF KALGOORLIE/BOULDER NORTH WEST STRUCTURE PLAN WEST KALGOORLIE LIGHT INDUSTRIAL 1. The State is prepared to negotiate further on the following matters (a) involvement of Aboriginal people in the process of naming features, including roads and parks, in accordance with current policy and procedures adopted by the Geographic Names Committee of Western Australia. (b) involvement of Aboriginal people in the identification and planning of public open space and other areas to be retained within the north west structure plan area having regard for cultural and heritage issues, including the provision of heritage trails and other facilities as appropriate. (c) the State meeting the requirements of State Aboriginal heritage legislation and involving Aboriginal people in the completion of appropriate heritage and cultural surveys. (d) consideration of possible sites within the structure area for the benefit of the Aboriginal community. However, negotiations in this respect will be limited to sites for specific purposes such as a cultural centre and aged persons housing. Progress of this matter will be dependant on negotiations with all relevant native title parties. 2. The State is not prepared to: (a) grant serviced lots (other than in the context of 1(d) above) within subdivisional development nodes in either the north‑west structure area nor the West Kalgoorlie light industrial subdivision. (b) meet the costs of native title parties or their representatives in attending negotiation/mediation meetings and hearings. Native title parties have the opportunity to seek funding on native title issues through the relevant representative body or other Commonwealth organisations such as the Aboriginal and Torres Strait Islanders Commission." The letter also requested the Maduwongga solicitor's claim proposal. By letter dated 7 November 1996 the Maduwongga solicitor sought (among other things) clarification on whether the above items 1 and 2 applied to the Mungari Industrial Park as well as other developments in the Kalgoorlie/Boulder area and also whether the statements in above items 1 and 2 were definitive. On 11 November 1996 DOLA replied, confirming the extract also related to "the Mungari development" (being the Mungari Industrial Park, commercial subdivision, explosives reserve and solid waste disposal park) and that it was seen as a guide and not necessarily a definitive statement. The letter also declined a request which had been made by the Maduwongga solicitor that land be released for capital raising purposes. On 9 December 1996 a meeting was held between the Maduwongga solicitor, the DOLA representative and others. The Maduwongga solicitor outlined a proposal that was nearing completion. The proposal involved: · naming rights for playing fields and streets in the residential development; · a heritage survey of the sites with direct involvement of the claimants; · 10 square kilometres of freehold land west of the Mungari site at the site of the old camel farm being given to the Maduwongga native title party; · the Government party making available capital or serviced lots to sell to raise capital to develop the site (the capital required would be $900,000 if in cash but if in lots to sell, then the valuations applied would be of a conservative value to allow for the cost of disposal and the effort of disposing). On grant of the land, all costs of transfers to be met by DOLA. On 12 December 1996 the DOLA representative wrote to the Maduwongga solicitor responding to the matters discussed on 9 December 1996. "I can inform you that the State is prepared to negotiate further on the matters of: · the involvement of Aboriginal people in the naming of fields, parklands and streets in accordance with current policy and procedures adopted by the Geographic Names Committee of Western Australia; · the State meeting the requirements of the State Aboriginal Heritage legislation and involving Aboriginal people in the completion of appropriate heritage and cultural surveys. Until I receive your written proposal on the other topics discussed I cannot specifically respond but generally: · the State is not prepared to grant land or serviced lots other than for the benefit of the Aboriginal community. In this case the negotiations would be limited to sites for specific purposes such as a cultural centre or aged persons housing. Any such negotiations would need to involve all relevant native title parties; · the State is not prepared to provide capital for the development of the site as proposed in our discussions. I would appreciate a written proposal from your clients so that we can meet and negotiate the detail of their requirements." By letter dated 17 December 1996 the Maduwongga solicitor acknowledged the DOLA letter of 12 December 1996 and advised it would be recommended to their client not to proceed unless an Acknowledgment of Confidentiality was executed in the form requested. On 20 December 1996 the DOLA representative gave a written commitment to keep all business confidential unless the law required otherwise and requested a written proposal. By letter dated 11 February 1997 the DOLA representative advised the Maduwongga solicitor that DOLA had "agreed to defer the lodgement of a future act determination with the [Tribunal]" and was hopeful of reaching an agreement. An invitation was extended to the Maduwongga native title party to discuss its requirements. On 28 February 1997 the Maduwongga solicitor made a proposal, the essential elements of which had been made on 9 December 1996. After further correspondence the DOLA representative wrote to the Maduwongga solicitor on 3 April 1997 in the following terms. "The proposal for land tenure at the Mungari heavy industry site is for freehold sale with a buy back clause. This is to ensure that only heavy industry develops in the estate. I wish to confirm my offer to the Maduwongga claimant group that the State is prepared to offer: 1. The involvement of the claimant groups in heritage and ethnographic studies of the area. 2. The involvement of the claimant groups in the planning and design of the subdivision. 3. The use of aboriginal names for roads, parks and special features in accordance with existing state policies and procedures, and with agreement of the local authority. 4. If land is to be made available, then the use and benefit of that land must be for all people who are party to the claims. 5. The claimant group will reserve the right to compensations if it is proven to be the native title holder of the land. I am keen to meet with the claimants to further discuss this offer. I look forward to your advice of a suitable meeting date and time." By letter in response dated 7 April 1997 the Maduwongga solicitor stated "our clients wish to keep negotiation meetings to a minimum." It requested the Maduwongga native title party's proposal be adhered to as a "starting point". On 8 April 1997 the DOLA representative wrote to the Maduwongga solicitor in the following terms. "To date the negotiations for the proposed future acts at Mungari have been included in the general Kalgoorlie negotiations. The need to separate the proposed industrial subdivision, the solid waste disposal site and the explosives area from the residential and light industrial proposals for Kalgoorlie, has become apparent. The intended future use of the Mungari sites makes the allocation of land there difficult, if not impossible to agree to. However the State has indicated its intent to consider the grant of land in line with current state policies and statutory procedures. Any site selected would need to be of a size that would be suited to the need of the group, but a site of 10 square kilometres would not be considered. If the land is granted, it is intended that it be used for heritage, cultural and other appropriate purposes. The claimants rights to compensation will be preserved if they are proven to be the native title holders and can be dealt with at that time. The developers of the site have in place a draft strategy for the employment of aboriginal people, and it is the State's intent to promote the employment of aboriginal people in the estate. Please advise if the claimants you represent would be prepared to enter into an arrangement to allow the Mungari future acts to proceed." In reply, by letter dated 29 April 1997, the Maduwongga solicitor again stated his clients wished to minimise costs by keeping meetings to a minimum and invited a specific response to the suggestion their proposal be the "starting point". By letter dated 7 May 1997 the DOLA representative advised the terms specified in his letter of 3 April 1997 were those on which negotiations could proceed. On 15 May 1997 the Maduwongga solicitor advised he would seek instructions on the points proposed, on the basis his starting point had not been adopted. After written inquiry as to progress from the DOLA representative on 13 June 1997, the Maduwongga solicitor advised on 23 June 1997 his clients considered the matters in the letter of 3 April 1997 to be too uncertain and again requested the proposal in his letters of 7 and 29 April 1997 be the starting point. There was some further correspondence but no further progress in resolving this issue was made. On 19 August 1997 the Manager of the Native Title Unit at DOLA wrote to the Maduwongga solicitor as follows: "The State has reached a stage where despite considerable effort in reaching agreement to enable this matter [Mungari Industrial Park] to proceed, an agreement has not been possible. Therefore the necessary action has been taken to lodge under section 35 of the Native Title Act a future act determination application with the National Native Title Tribunal (NNTT). However, this Department representing the State, is prepared to continue negotiations with you in an attempt to reach an agreement enabling the proposal to proceed. In this respect, I repeat previous commitments given to you for consideration by your clients. (a) The State is prepared to consider the grant of land for heritage and cultural purposes, in line with current State policy and statutory procedures. (b) Development within the subdivision will have regard for any Aboriginal heritage and cultural matters identified by completed or future surveys of this nature. (c) The State will promote employment and training opportunities for Aboriginal people as part of its programme in progressing development of the state. One potential development proponent has indicated to the State its willingness to adopt a strategy in this respect. (d) Any agreement reached in line with (a), (b) and (c), will reserve the right for your clients to compensation should they in the future, be determined native title holders." By letter dated 21 August 1997 the Maduwongga solicitor stated the terms in the letter of 19 August 1997 were too uncertain and ignored the starting point proposed by the Maduwongga native title party. He again requested negotiations be kept to a minimum and proceed only if there was a proper basis. Tribunal's statement of legal issues The Maduwongga native title party submitted to the Tribunal that the Government party had not negotiated in good faith with them as required by s 31(1)(b) of the NT Act so that the application by the Government party pursuant to s 35 should be dismissed under s 148 of the NT Act: Walley v Western Australia (1996) 137 ALR 561. Following the Federal Court decision in Walley, a Native Title Tribunal in Njamal People/Mullan (NNTT WF 96/4, Hon CJ Sumner, 7 August 1996) dismissed an application made by the Government party on the basis it had not negotiated in good faith. The Njamal claim was distinguishable from the present matter in that it involved a proposal to grant a mining lease and there was a grantee party. The Tribunal in this matter, being constituted by the same person, was guided in this matter by the following principles and propositions derived from Njamal which were generally accepted on behalf of each of the present parties. (1) Negotiation is central to the future act process: Walley at 576. (2) Section 31 of the NT Act imposes the obligation to negotiate in good faith. There are two obligations. The first, contained in s 31(1)(a), is to give the native title parties an opportunity to make submissions to the Government party (either in writing or orally) regarding the act. The second, contained in s 31(1)(b), is to negotiate and to do so in good faith with both the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to the doing of the act with or without conditions. (3) The words "negotiate in good faith" are not defined in the NT Act and must be given their normal meaning having regard to the statutory context and principles of statutory construction: Njamal at 9. "Negotiation" involves communicating, having discussions or conferring with a view to reaching an agreement. Good faith involves both subjective honesty of purpose or intention and reasonableness of effort to negotiate and reach agreement Njamal at 19. (4) Some preparedness to shift position or compromise in order to achieve agreement appears to be an important part of good faith negotiations in its ordinary meaning: Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food, Metals and Engineering Union (1995) AILR 1165; 59 IR 385. (5) Negotiating in good faith may depend on the conduct of the party when considered as a whole. It generally involves approaching negotiations with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid pre‑determined position and not demonstrating any preparedness to shift: Public Sector Professional Scientific Research, Technical, Communications, Aviation and Broadcasting Union v Australian Broadcasting Commission (1994) 36 AILR 419 at 421. (6) Good faith negotiations will depend for their character on the legislative and factual context and must be considered in the unique circumstances of native title and future act negotiations required under the NT Act: Njamal at 14-15. (7) Negotiation in good faith does not mean the Government party has an obligation to capitulate or to accept the other side's position or mean that a negotiated agreement must be reached between the parties: Njamal at 15. (8) The Government party cannot refuse to enter into negotiations because it believes there is a matter which is fatal to another party's position: Njamal at 15. (9) In looking at the conduct of the Government party as a whole useful indicia are: (i) unreasonable delay in initiating communications in the first instance; (ii) failure to make proposals in the first place; (iii) the unexplained failure to communicate with the other parties within a reasonable time; (iv) failure to contact one or more of the other parties; (v) failure to follow up a lack of response from the other parties; (vi) failure to attempt to organise a meeting between the native title and grantee parties; (vii) failure to take reasonable steps to facilitate and engage in discussions between the parties; (viii) failing to respond to reasonable requests for relevant information within a reasonable time; (ix) stalling negotiations by unexplained delays in responding to correspondence or telephone calls; (x) unnecessary postponement of meetings; (xi) sending negotiators without authority to do more than argue or listen; (xii) refusing to agree on trivial matters, eg: a refusal to incorporate statutory provisions into an agreement; (xiii) shifting position just as agreement seems in sight; (xiv) adopting a rigid non-negotiable position; (xv) failure to make counter proposals; (xvi) unilateral conduct which harms the negotiating process, eg: issuing inappropriate press releases; (xvii) refusal to sign a written agreement in respect of the negotiation process or otherwise; (xviii) failure to do what a reasonable person would do in the circumstances (Njamal at 17-18). (10) Depending on the circumstances it may be that a Government party has little it is able to offer in resolution of the dispute: Njamal at 18. (11) If the native title party acts unreasonably there may be a lesser standard on the Government party depending on the circumstances of the particular case: Njamal at 51. (12) The Government party should actively participate in the negotiation process, including providing information in relation to the proposed act: Njamal at 47. (13) Negotiation in good faith may require more than just facilitating discussions. It will require active participation in discussions and it may require the making of proposals: Njamal at 48. (14) A Tribunal should not set an unrealistic standard for what is required: Njamal at 52. (15) A Tribunal must satisfy itself on the balance of probabilities that the Government party has negotiated in good faith. There is no legal or evidentiary onus: Njamal at 19-20. The Tribunal in its reasons added further to this statement in the following way: (a) In relation to propositions (10) and (13) above, the obligation on the Government party will depend on the particular circumstances of the case. (b) Proposition (8) does not mean the Government party is obliged to disregard the strong points in its case. The legal framework for negotiations is set by ss 38 and 39 of the NT Act. However, the parties may move out of this framework in order to achieve a settlement. The NT Act envisages that at least in one respect a negotiated agreement is permitted to deal with matters which an arbitral determination cannot. Section 33 permits an agreement following negotiations to contain a condition for payments worked out by reference to the amount of profits made, income derived or things produced in contrast to s 38(2) of the NT Act. (c) An additional indicium is that there is a need for frankness and openness in the dealing with other parties - this should be added to criteria (9)(viii) as "unreasonably failing to disclose facts or legal argument which the Government party intends to rely on in an arbitral inquiry". (d) Proposition (9)(xviii) was to be understood as applicable to both procedural and substantive aspects of the negotiation. Although the Tribunal stated the Government party's acceptance of the propositions was qualified in relation to the obligation to behave reasonably, the Government party denied that at the hearing of this appeal. The Tribunal said it was important "negotiations" be looked at from the substantive as well as procedural aspects because the resolution of issues will not be encouraged if the Government party is able to make unrealistic substantive offers. It said the purpose of the NT Act will be enhanced if the obligation in good faith imposed on the Government party involves taking both reasonable procedural steps and the making of reasonable substantive offers. Tribunal's findings The Tribunal found the proposed compulsory acquisition of native title rights and interests is a permissible future act covered by s 26(2)(d) of the NT Act. For the purposes of the matter there was no grantee party. The Tribunal also found there was a sixteen month period within which negotiations could occur, being a period constituted between the publication by the Government party of the s 29 notice on or before 11 April 1996 and the lodgement by it of the s 35 application on 20 August 1997. The Tribunal found the letter from DOLA dated 28 June 1996 complied with the Government party's obligations under s 31(1)(a) of the NT Act. It also found the letter commenced the negotiations because it contained information concerning the project and invited contact to be made with DOLA. The Tribunal then found the Government party decided to wait until the end of the two months notification period before commencing negotiations. Accordingly the effective date for the commencement of negotiations was 11 June 1996. Although the initiating letter was sent on 28 June 1996, (seventeen days later), this was considered by the Tribunal to be of no consequence because negotiations went on well beyond the six months statutory period. Next the Tribunal found the Government party had acknowledged there had been a three month delay in responding to the Maduwongga solicitor's request for written reports of heritage surveys previously carried out and which were in the possession of the Government party. However, it found because of the extension of the negotiating period, the delay was of less significance that it might be in other contexts. There was a finding also that the native title party complained of other instances of delay. There had been a two month delay in the provision of an acknowledgment of confidentiality by DOLA and LandCorp. The terms of this acknowledgment had been disputed and that was a part explanation for the delay. The request had been made by the Maduwongga solicitor on 9 December 1996 and the acknowledgments had been provided respectively on 9 January 1997 and 6 February 1997. The Tribunal then continued: "I have come to the conclusion that in the procedural sense the Government party fulfilled its obligation to negotiate in good faith and it is not necessary to recite all the steps that were taken. It is sufficient that I find that: · The Government party contacted and attempted to arrange meetings and in fact held a number of meetings with the native title parties and their legal representatives. As the negotiations were being conducted in relation to a number of projects which involved other native title parties attempts were made by the Government party to arrange meetings at which all parties would be present. [The Maduwongga solicitor] chose not to attend some of these meetings. The fact that the Government party attempted to arrange meetings of this kind is consistent with its obligation to negotiate in good faith even though it appears that only one meeting was subsequently held with [the Maduwongga solicitor]. · In addition to attempting to organise meetings the Government party responded to requests for plans and photographs relating to the proposal and for financial information and details of heritage surveys. · The Government party requested the Tribunal to mediate and participated in the process (although in the event these meetings did not progress the negotiations greatly). · [The Maduwongga solicitor] requested that a confidentiality agreement be signed before his clients proposals would be put and discussed. Although there was some dispute in discussion about the terms of this confidentiality agreement, an agreement was eventually signed by DOLA. The willingness of the Government party to sign this agreement is again consistent with good faith negotiations. · The Government party made proposals for a resolution of the matter and entered into correspondence in relation to them. · The Government party extended the negotiating period beyond six months, thus giving a further eight months for negotiations (excluding the two month extension for not negotiating during the notification period)." The Tribunal considered the challenge brought by the Maduwongga native title party to the application required it to consider, firstly, whether the Government party could be said to have stuck to its original negotiation position without shifting and, secondly, whether the proposals from the Government party amounted to an expression of good intentions and nothing more than it would have been required to do in any event. As to whether there had been adherence to its original negotiating position, the Tribunal said the correspondence indicated the Government party was prepared to discuss issues further. It found there was nothing to suggest those statements were not genuine and there was in fact some movement from the Government party's original negotiating position. The Tribunal further found the way in which the negotiations unfolded meant the parties had not got down to the detailed discussions of the Government party's proposals. That was unfortunate but not fatal to the Government party's contention it had negotiated in good faith. The Tribunal found detailed discussions about the Government party's proposals did not occur because the native title party, in the months prior to the s 35 application being made, wanted to proceed on the basis of the proposition which it had put forward. The Tribunal continued: "Its proposal was first outlined at a meeting on 9 December 1996 and committed to writing in the letter from [the Maduwongga solicitor] dated 28 February 1997. In letters dated 7 April 1997, 29 April 1997, 15 May 1997 and 23 June 1997 [the Maduwongga solicitor] asserted that his proposition sent on 28 February 1997 should be the starting point for negotiations. [DOLA's representative] continued to put the Government party's position and expressed a willingness to meet (see letters of 3 April 1997 and 8 April 1997). On 13 June 1997 [DOLA's representative] sought a response to the proposals in his letter of 3 April 1997 on which [the Maduwongga solicitor], in his letter dated 15 May 1997, had said he would obtain his client's instructions. Regrettably during this period there was a stand‑off about what proposal would form the basis of discussions and no effective engagement and negotiations between the parties." The Tribunal concluded on this point that although there had not been a great deal of movement from the Government party's original position it was not open to it to conclude the Government party had adopted a predetermined position and was not willing to compromise. On the second limb of the submissions for the Maduwongga native title party the Tribunal found there was "some substance" to the complaint the offers being made by the Government party amounted to nothing more than what it was required to do in any event. It found the commitment to meet the requirements of the State Aboriginal Heritage legislation was something the Government party could not avoid. It found the Government party agreed with the Goldfields Lands Council, who represented the Mingarwee native title party, to carry out a new Aboriginal site survey to supplement the one carried out during earlier stages of the project's development. However, despite a proposal from the Maduwongga solicitor for a heritage survey, no agreement had been reached because the parties were not able to get down to detailed discussions of the issues. In relation to the proposal for the involvement of Aboriginal people in the process of naming features, the failure of the parties to engage in meaningful detailed dialogue on the issue meant that what was being offered was not fleshed out. The Tribunal did not consider it was necessary to consider the precise obligations which were imposed by State law on the Government party in relation to the involvement of Aboriginal people in the identification and planning of public open space because it was sufficient that it was a legitimate area for negotiation. As to the complaint on behalf of the Maduwongga native title party that all that was being offered in respect of each of these matters was involvement and the offers should have been more specific, the Tribunal found that effective discussions about the detail of the proposals did not occur. There was therefore no occasion for the Government party to clarify or offer more specific proposals. The Tribunal then considered whether the offer of land and the Government party's approach to compensation was reasonable in the circumstances. It found no offer of monetary compensation had been made although the native title parties rights to claim compensation, if native title was established, had been preserved. Further it found that in addition to the retention of rights to claim compensation, there was an offer of "consideration of possible sites". Again what was involved in the offer had not been spelt out because of the failure of the parties to discuss details. The Tribunal found the approach of the Government party, given the current state of knowledge of the law relating to compensation for the compulsory acquisition of native title rights and interests, was not unreasonable in the circumstances of the case. Then the Tribunal turned to the Government party's proposal that the grant of land must be for the benefit of the Aboriginal community as a whole. The Tribunal concluded the Government party did not adopt a rigid stance on the point. The general conclusions of the Tribunal were to the following effect. It found some aspects of the Government party's negotiating behaviour could have been improved, such as the delay in the provision of some information and the manner in which negotiations were terminated. It also found some aspects of the Maduwongga native title party's negotiating conduct was less than co‑operative, in particular that party had displayed a reluctance to attend meetings with other native title parties. Reluctance to disclose negotiating points did not excuse failure to attend mediation meetings. The stated intention of the Maduwongga native title party to keep negotiation meetings and correspondence to a minimum manifested a reluctance to engage with the Government party in meaningful discussions. The Tribunal approached the matter on the basis that in the interests of the proper functioning of the NT Act it is necessary all parties should be prepared to actively and constructively participate in negotiations. The Tribunal therefore concluded, looking at the conduct of the Government party as a whole, it had negotiated in good faith with the Maduwongga native title party with a view to achieving its agreement to the doing of the act. Grounds of appeal The principal ground of appeal is that the Tribunal erred in law in concluding that what was done by the Government party before it made application for a determination pursuant to s 35 of the NT Act was capable of constituting negotiation in good faith. This ground is particularised on a number of bases. The first is negotiation and good faith is not open to be found where the Tribunal also found the parties had not engaged in detailed discussion of the issues sufficient to clarify the terms of offer; there had not been meaningful detailed dialogue; and effective discussions had not occurred. Secondly, it is contended good faith negotiations are not capable of being found where the respondent gave no prior warning to the applicants of its intention to cease negotiation or any prior warning of a reason for so doing before making the s 35 application. Thirdly, it is particularised that a stand-off or break-down in negotiations based on the form of the basis from which discussions might commence constitutes a refusal to agree on a trivial matter which is a circumstance inconsistent with good faith negotiations. Fourthly, it is particularised good faith negotiations are not capable of being found to be consistent with the s 35 application being immediately preceded by a two month period when no attempt was made to engage in detailed discussions and no prior warning was given of the Government party's intention to make that application. The second principal ground of appeal is that the facts were not capable of sustaining a conclusion negotiations had broken down between the parties prior to the making of s 35 application. Notice of contention On behalf of the Government party there is a notice of contention to the effect the Tribunal erred in law in determining that the obligation in s 31(1)(b) of the NT Act, requiring the Government party to negotiate in good faith, includes an obligation to make reasonable substantive offers. Negotiation "in good faith" The question whether the facts as found by the Tribunal (the facta probantia) fall within the range of the statutory words "negotiate in good faith" (the factum probandum) is a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9‑11, cited with apparent approval in Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389 at 395. The Federal Court therefore has jurisdiction under s 169(5) of the NT Act to decide whether, on the facts as found by the Tribunal, it erred in concluding the Government party "negotiated in good faith". The appealable error of law must arise on the facts found by the Tribunal: Pozzolanic at 8; Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 364. As is already apparent, the applicants does not contend the Tribunal fell into error of law by misdirecting itself as to the contents of the words "negotiate in good faith". The challenge to the Tribunal's understanding in that respect arises solely from the Government party's notice of contention. It is not in dispute, as is submitted for the Government party, that the words "negotiate in good faith" as they appear in s 31(1)(b) of the NT Act should be interpreted in accordance with their ordinary and natural meaning - Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161‑162, and that they must be construed in the context of s 31 and the NT Act as a whole: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 512, 514, 519. Nor is it in dispute that while the words "negotiate in good faith" and "good faith" have been considered in a variety of statutory and other contexts it is the context of the NT Act in particular which is determinative. Similar words to those in s 31(1)(b) appear in other sections of the NT Act although the Government party contends they do not throw any additional light upon the words in s 31(1)(b). An obligation to negotiate in good faith arises in s 32(5) of the NT Act following a determination by the Tribunal that the proposed act is not an act attracting the expedited procedure. Words to similar effect appear in pars 43(2)(b), 79(1)(b) and 228(3)(b)(ii). This Court therefore is in the position where the applicants does not challenge the Tribunal's understanding of the requirements of "negotiate in good faith" in s 31(1)(b) of the NT Act but the Government party challenges the requirement that this includes an obligation to make reasonable substantive offers. Apart from the matters raised in the notice of contention the broad principles governing the obligation on the Government party imposed by s 31(1)(b) to negotiate in good faith are clear. The Government party must "negotiate" with the native title parties and the grantee parties. The requirement to "negotiate" is to be understood in its ordinary and natural meaning. In its reasons the Tribunal, after citation of dictionary definitions, concluded negotiation "involves communicating, having discussions or conferring with a view to reaching an agreement". That understanding is not in contention on this appeal. 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. The nature of the communications relevant to the conduct of such negotiations is set out in the propositions enunciated by the Tribunal and not in dispute on this application. Specifically the Government party's generally adopt the indicia set out in the reasons of the Tribunal and repeated in pp 12-14 of these reasons under the heading "Tribunal's statement of legal issues". Furthermore it is accepted for the Government party that "good faith" may be judged objectively in the sense explained by Lord Nicholls in Royal Brunei Airlines SDN BHD v Tan (P.C.) [1995] 2 AC 378 at 389 cited by Beaumont and Carr JJ in International Alpaca Management Pty Ltd v Ensor (1995) 133 ALR 561 at 596-597. It is therefore accepted that if the Government party acts "unreasonably" in the sense referred to in Wednesbury Corporation v Minister of Housing and Local Government [1965] 1 WLR 261 it may not be acting in good faith. As previously said, what is put in contention by the Government party's notice of contention is whether the obligation under s 31(1)(b) of the NT Act to negotiate in good faith includes an obligation to make "reasonable substantive offers". These latter words suggest an objective test of good faith. The legal concept of "good faith" frequently takes its meaning and colour from a statutory context, so that the opportunity for derivation of general principles from decided cases is limited. It frequently arises in the context of bankruptcy legislation: Bill Risk on behalf of the Larrakia People v Williamson (O'Loughlin J, Federal Court of Australia, 10 June 1998, unreported). Addressing the words "acting in good faith" as they appear in s 121(1) of the Bankruptcy Act 1966 (Cth), Kirby J in Cannane v J Cannane Pty Ltd (In liq) (1998) 153 ALR 163 at 191‑192 said: "It has been remarked that, putting it broadly, the words "good faith", or their Latin equivalents, have received "two divergent meanings". Siano v Helvering 13 F Supp 776 at 780 (1936) in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 at 298; 116 ALR 460. See also South Australia v Clark (1996) 66 SASR 199 at 230; Municipality of Bhiwardi v Kailash Sizing Works (1974) 2 SCC 596 at 599. The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it. The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence. The particular interpretation apt to the use of the words in a given legislative context will depend on the decision‑maker's elucidation of the purpose of the legislature." For the Government party it is first submitted, as is not in contention between the parties, the decision in Cannane involved a different statutory context to this appeal and so should be of little assistance. Furthermore, the case for the first respondent in support of its notice of contention does not seek to rely upon the distinction between the subjective view and objective construction referred to in the dicta of Kirby J in Cannane at 191‑192 and the other cases cited by him including the decision of the Full Court of this Court in Mid Density Developments. For the Government party it is accepted the ordinary and natural meaning of the words "negotiate in good faith" as they appear in s 31(1)(b) of the NT Act, when considered in their statutory context incorporate a requirement of subjective honesty of intention and sincerity. It is accepted if a Government party did not negotiate with an honest and sincere intention of reaching an agreement it would not satisfy the obligation in that paragraph: Risk v Williamson. Furthermore, it is accepted a Government party's negotiating conduct may also be viewed objectively: International Alpaca Management at 596‑597. While nevertheless accepting s 31(1)(b) of the NT Act thereby incorporates an objective standard, the Government party still contends the Tribunal erred in construing that paragraph as imposing an obligation on a Government party to make "reasonable" substantive offers. For the Government party it was accepted Kirby J in Cannane considered the words "acted in good faith" in s 121 of the Bankruptcy Act incorporate an objective standard of "reasonable caution and diligence" and "reasonable prudence" (at 192-193). However, it is said that is referable to the particular legislative context of that Act. In the context of the NT Act it is submitted it is not possible for a Tribunal or court to decide whether an offer proposed by a Government party, or the refusal of a Government party to agree to a term proposed by a native title party, is "reasonable" in an objective sense. It is submitted there are no criteria in s 31 of the NT Act against which the "reasonableness" of the Government party's position can be judged. Rather it is said the terms upon which the negotiation parties may enter into an agreement and the factors to be taken into account by each party in deciding whether to enter into an agreement on particular terms, are too varied and too dependent upon the characteristics and priorities of the parties for any decision-maker to say that a proposed term is "reasonable". This, it is said, is particularly so where policy considerations are likely to be paramount. The second respondents share with the Government party acceptance of the principle that the words "good faith" in s 31 of the NT Act require not only examination into the state of mind of the Government party but also an investigation of objective facts. It is submitted for them this necessarily means the reasonableness of offers and concessions are put in question. The case for the applicants also supports the existence of both the subjective and objective aspects of "good faith" as it appears in s 31(1)(b) of the NT Act. It submits whether or not the Government party has negotiated in good faith is to be proved by inference derived from all the relevant facts indicative of the conduct amounting to negotiation: cf Cannane at 193 per Kirby J. It may be that what the Tribunal attempted to do in referring to the fact "good faith" involves "taking both reasonable both procedural steps and making reasonable substantive offers" was no more than to impose the objective element of the good faith requirement upon the conduct amounting to negotiation. That is, it has accepted both the subjective and objective standards as do all the parties in these proceedings. If that is so, its formulation of the proposition as one requiring "reasonable substantial offers" goes beyond that and misstates the position. 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). Because the wording of the reasons of the Tribunal lends itself on a strict construction to the view that each particular offer is to be assessed for its reasonableness, I consider the notice of contention should be upheld. As is readily apparent from these reasons, that does not have the consequence that the phrase "negotiating in good faith" does not require application of both the subjective and an objective tests to the total course of conduct. I add that the reference in the preamble to the NT Act which reads "[i]n future, acts that affect native title should only able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate", is no basis for reading down the express words of s 31(1)(b) itself: Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436 at 463; Wacando v Commonwealth (1981) 148 CLR 1 at 23 per Mason J. Whether factual foundation for finding The second principal ground contends for an error of law arising from any adequate foundation for the Tribunal's finding. I address each of the particulars said to support this ground. (1) Absence of detailed discussion For the Government party it is submitted the failure of the parties to engage in detailed discussions concerning the offer made by it was not inconsistent with it having negotiated in good faith. In support it is said this is because that failure was not the fault of the Government party. The communications disclose a willingness by it to meet to discuss the offer. It is submitted it was open to the Tribunal to find it was the conduct of the applicants in failing to meet with the Government party which led to the failure of discussions. It is further submitted it would be contrary to the objects and purpose of the NT Act if the Government party could be found not to have negotiated in good faith on the basis of a failure to engage in detailed discussions when that failure was due to the refusal of the native title party to enter into discussions otherwise than on its terms. For the applicants, that characterisation of the conduct of the native title parties is disputed. In my view it is unnecessary to resolve the issue of characterisation in relation to that conduct. It is sufficient to satisfy the requirements of negotiation that the Government party proposed a basis for discussion. Whether the native title parties engaged in any discussion is not relevant at this point. It is further said that even if the Government party could have done more to promote detailed discussion concerning its offer, its failure to do so does not lead to the conclusion that overall it failed to negotiate in good faith. In my view that submission is correct. The question is whether the conduct of the Government party upon whom the obligation to negotiate in good faith rested, considered overall, gave rise to facts satisfying the statutory requirement of negotiating in good faith. Negotiation requires communication: there was evidence the Government party communicated a position, varied it and stood ready to discuss it further. There were facts on which the Tribunal was entitled to find as it did. For the applicants it is also submitted the Tribunal failed to give adequate weight to the absence of meaningful discussions with the consequence that the decision of the Tribunal must be considered to be unreasonable: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Yildiz v Minister for Immigration and Ethnic Affairs (1982) 70 FLR 105; Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 at 433 per Pincus J. The factual premise on which this submission is based is unfounded. There is no proven failure to give adequate weight to the absence of detailed discussions. The Tribunal was required to consider all the facts as found by it in relation to the statutory phrase and there is no evidence it failed properly to have regard to those facts. (2) Failure to warn of cessation For the applicants it is contended that in circumstances where the Tribunal found there was a stand-off concerning the proposal which would form the basis for discussions so that there was no effective engagement in negotiations, it was not open to the Tribunal to find good faith negotiations had been conducted where the Government party had given no prior warning of the intention to cease negotiations. The relevant statutory regime was such that on the expiration of the six month time limit referred to in s 35(b) of the NT Act, which the Government party accepts did not effectively commence until after the two month period referred to in s 30 of the NT Act, the Government party was entitled to lodge a future act determination application. That entitlement is the reason why the obligation in s 31(1)(b) to negotiate in good faith cannot be interpreted as an obligation to continue negotiations until some particular point in negotiations has been reached. The statutory right to lodge the future act application has the consequence the act of lodgement cannot be relied upon to establish bad faith in the negotiating process. In any event, as a question of fact, the Tribunal is required to consider all the circumstances which included the fact that negotiations had effectively broken down, no progress was being made and the applicants were being less co-operative. There were no facts to support a finding by the Tribunal that a failure to give more warning that the application pursuant to s 35 of the NT Act was to be lodged supported a finding the Government party had not negotiated in good faith. (3) Whether negotiations had broken down The applicants challenge the finding of the Tribunal that as at 15 May 1997 and during that period there was a stand-off about what proposal would form the basis of discussions. It is said it was wrong in law for the Tribunal to so characterise the negotiations because the facts were not reasonably capable of being so interpreted: Lui W v Renevier (1989) 9 ALR 39 at 50; Detsong Jarus v Minister for Immigration Local Government and Ethnic Affairs (1990) 21 ALD 139 at 141-142 per Pincus J; Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 per Menzies J; Chan Ye Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407 per Toohey J. In my opinion on the evidence before the Tribunal the conclusion was reasonably open and no error of law arises. (4) Refusal to agree on a trivial matter Alternatively it is said that the finding by the Tribunal that there was a stand-off is simply to be seen as a refusal to agree on a trivial matter. For the Government party it is accepted a refusal to agree on a trivial matter is a circumstance inconsistent with good faith negotiations. However, it is submitted the stand-off concerning which proposal would form the basis of further discussions cannot be characterised in that light. In my view that is correct. The Government party did not refuse to agree. It proposed a basis for negotiations consistent with it having determined to embark upon the future act. The difference between the parties was not trivial and the Tribunal was entitled to so conclude. (5) Two month period of no discussions For the applicants it is also contended good faith negotiations are not capable of being found in circumstances where the s 35 application was preceded by a two month period when no attempt was made to engage in detailed discussions and no prior warning to make the application was given. I accept the submission for the Government party the Tribunal did not find that no attempt was made to engage in detailed discussions in that period. The Tribunal was required to consider the history of the efforts by the Government party to bring about discussions on its proposal and the fact the negotiation period had extended well beyond the statutory period of six months. Conclusion The Tribunal was required to consider whether in all the circumstances found by it the conduct of the Government party was such that it had negotiated in good faith. There was evidence before the Tribunal upon which it based a finding the Government party had satisfied the statutory criteria. This is not a case where the finding of the Tribunal was unsupported by any facts so that an error of law arose on that account. In my opinion the grounds of appeal do not establish any other error of law. I therefore conclude that the application by way of appeal should be dismissed. The notice of contention should be allowed for the reasons given which recognise the application of the words "negotiating in good faith" in s 31(1)(b) of the NT Act require the application of both subjective and objective considerations. I certify that this and the preceding twenty-eight (28) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON