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Taylor v. State of Western Australia and Gary Mullan and National Native Title Tribunal;
Collard and Anor. v. State of Western Australia and Aztec Mining Company Ltd and Forrestania Gold NL and National Native Title Tribunal;
Smith v. State of Western Australia and Plutonic (Baxter) Pty Ltd and National Native Title Tribunal Federal Court of Australia (Carr J)
20 June 1996, Perth
Native Title Act 1993 (Cth) - 'future act' - 'right to negotiate' - Government proposals to grant mining leases - Government application to National Native Title Tribunal under s. 35 for a determination whether it could grant the leases and, if so, subject to what (if any) conditions - whether Government compliance with its obligation under s. 31 to negotiate in good faith is a condition precedent - whether Tribunal entitled to proceed with s. 35 determination - application by registered claimants to native title for judicial review.
During 1995 the Minister for Mines for Western Australia, in accordance with the Native Title Act 1993 (Cth) ('the NTA') s. 29, notified its intention to grant various mining leases. In response, applications were lodged by claimants for determinations of native title. The National Native Title Tribunal accepted four such applications in August 1995. On 5 January 1996 the Government party applied under s. 35 to the Tribunal for a determination whether it could grant the mining leases and, if so, whether such grants would be subject to any conditions.
The applicants submitted to the Tribunal that it could not proceed with the applications because the Government had not negotiated in good faith in accordance with subs. 31(1)(b). The Tribunal was asked to dismiss the applications. On 8 March 1996 the Tribunal held that it had no power to dismiss the applications on the grounds put forward, and listed the applications for hearing. On 28 March 1996 the applicants applied for judicial review of the Tribunal decision, and of its conduct, or proposed conduct, in continuing to hear and determine the applications.
Held that:(1) The requirement that the Government party negotiate in good faith is a jurisdictional prerequisite to the Tribunal exercising its power to make a determination. Accordingly the Tribunal does have power to decide whether that jurisdictional requirement has been complied with.
(2) The Tribunal's decisions to dismiss the applicants' applications to dismiss the Government's s. 35 applications be set aside.
(3)The applicants' applications be remitted to the Tribunal for re-determination according to law.
(4) The Government (and in Walley and Taylor, the second respondents as well) pay the applicants' costs.
Carr J.Subdivision B (which is entitled 'Right to negotiate') of Division 3 of Part 2 of the Act applies to certain 'permissible future acts', a term defined by s. 235 of the Act. The proposed grant of a mining lease falls within that definition because it is an act (other than the making, amendment or repeal of legislation) which could be done in relation to the land concerned if the relevant native title holders instead held ordinary title to that land. Section 26(2) provides that the creation of a right to mine, whether by the grant of a mining lease or otherwise is, subject to s. 26(3), one of the permissible future acts to which Subdivision B applies. The exclusions provided for in s. 26(3) do not apply to these matters.
Section 29 requires the Government party to give notice of its intention to do the permissible future act. The Government party must give that notice to various persons including any registered native title claimant in relation to any of the land or waters that will be affected by the permissible future act. Such a claimant is described in the relevant provisions as being included within the expression 'native title party', see s. 29(2). The expression is extended by s. 30 to include any person who becomes a registered native title claimant within two months of the giving of notice by the Government party. The applicants in these proceedings did not become registered native title claimants within that period, but in the Tribunal and in these proceedings they have been treated as being native title parties. This may be the result of the definition of the term 'native title party' in s. 253 when read with s. 29(2)(b) - i.e. independently and without reference to the operation of s. 30. However, it is not necessary for present purposes to explore that question. There are provisions in the Act in relation to what is termed 'the expedited procedure'. These matters do not involve the expedited procedure. In those circumstances. it is necessary to have regard to the following provisions:
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; 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.
Arbitral body to assist in negotiations
(2) If any of the negotiation parties' requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
[The term 'negotiation party' is defined by s. 253 as meaning a Government party, a grantee party or a native title party.]
...
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.
34. If, at any time before any determination is made by the arbitral body under section 38, the negotiation parties make and agreement of the kind mentioned in paragraph 31(l)(b) or subsection 32(5). they must give a copy to the arbitral body.
35. Any negotiation party may apply to the arbitral body for a determination. in relation to the act if there is no such agreement within:
(a) if the act is the grant of a licence to prospect or explore for things that may be mined -the period of 4 months starting when the notice under section 29 is given. or
(b) in any other case -the period of 6 months starting when the notice is given.
Section 75 describes, by means of a short table, applications which may be made 'to the Registrar' under Division 2 of Part 3 of the Act. That Division is headed ''Right to negotiate' applications'. It was common ground that in the present matters the reference 'to the Registrar' meant 'to the Tribunal'. An application under s. 35 for a determination by the Tribunal in relation to a future act is one of the two kinds of applications set out in the s. 75 table. Section 139 obliges the Tribunal to hold an inquiry into an application covered by section 75. Section 139 and the sections following it govern the procedure to be followed by the Tribunal.
Section 147 confers power on the Tribunal to dismiss an application if, at any stage of an inquiry relating to the application, it is satisfied that the application is frivolous or vexatious. Section 148 confers an identical power on the Tribunal if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application. The applicant's application to the Tribunal to dismiss the Government party's application for a determination was based on both sections 147 and 148.
Section 162 requires the Tribunal, after holding an inquiry in relation to a right to negotiate application. to make a determination about the matters covered by the inquiry. Certain time limits are imposed upon the Tribunal by section 36 of the Act.
I set out below the text of ss. 36 and 37 of the Act.
All reasonable steps to be taken
36(1) Subject to section 37, the arbitral body must take all reasonable steps to rnake a determination in relation to the act within:(a) if the act is the grant of a licence to prospect or explore for things that may be mined -the period of 4 months starting when the application is made; or
(b) in any other case -the period of 6 months starting when the application is made
[in these matters this period will end on 4 July 1996]
Report to Commonwealth Minister
(2) If the arbitral body is the NNTT and it does not make the determination within the period, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so.
37. If before it makes a determination, the arbitral body is given a copy of an agreement in accordance with section 34, it must not make the determination.'
Section 38(1) provides that an arbitral body must make a determination that the act must not be done, or may be done, or may be done subject to conditions.
Section 38(2) provides that the arbitral body must not determine a condition which would have the effect that native title parties became entitled to payments worked out by reference to the amount of profits made or any income derived or 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. This is to be contrasted with s. 33 (see above), which provides that such a condition may be included in negotiations. Section 39 sets out various matters which the arbitral body must take into account in making its determination. These include '... any other matter that the arbitral body considers relevant'.
The Proceedings Before the Tribunal and the Tribunal's Decision
The Tribunal had before it affidavits filed on behalf of the applicant and the Government party on the question whether the latter had in fact negotiated in good faith. The Tribunal did not find it necessary to make any findings of fact on that matter. The Tribunal assumed that s. 31 created a legal obligation on the Government party to negotiate in good faith with the native title parties and grantee parties. The applicant contended before the Tribunal that the Government party's application should be dismissed under either s. 147 or s. 148 of the Act on the basis that the Government party had not negotiated in good faith. I set out below certain relevant passages from the Tribunal's reasons for its decision:
'There is no specific power in the [Native Title Act] to enable this application to be dismissed on the basis that the Government party has not negotiated in good faith. If Parliament had intended negotiation in good faith to be a pre-condition for an Application under s. 35 and failure to do so a ground for dismissal it could have clearly said so. Instead, Parliament has set out the circumstances in ss. 147 and 148 under which an application can be dismissed and this ground is not specifically included. The lack of express power to dismiss has to be contrasted with s. 36 which requires the Tribunal to take all reasonable steps to make a determination within six months in the case of mining leases. unless an agreement has been reached.'
After distinguishing a case relied upon by the applicant, [Pancontinental Goldmining Areas Pty Ltd v. The Minister for Mines [1989] WAR 169] the Tribunal added:
'In the case before me, there is no clear power to authorise the Tribunal not to perform its functions by dismissing the Application. If there were power to dismiss an Application on the basis of a failure to negotiate in good faith, then the question of whether it was mandatory to dismiss it or purely directory would arise depending on the manner in which it was expressed. Here there is no statutory provision dealing with the consequences of failure to comply with s. 31. Malcolm C.J. made it clear that each case depended on the construction of the relevant statute. In other words, here there is no express provision connecting the obligation to negotiate in good faith with the consequences of not doing so in terms of a s. 35 application.'
The Tribunal then turned to the question whether failure to negotiate in good faith meant that the Government party could not make out a prima facie case in respect of its application. The Tribunal held that there was an arguable case and accordingly that there was no basis for dismissal under either s. 147 or s. 148. The Tribunal concluded (save for some additional comments about the negotiation progress to date in the matter) with the following:
'Given that in my view the Tribunal is the wrong place to obtain the orders it seeks where does this leave the native title party if it wishes to pursue its argument that there has been no negotiation in good faith?. There are procedures by way of judicial review to stop the Tribunal further hearing this matter or to compel the Government party to negotiate in good faith in other matters where negotiations are still going on but where a s. 35 application has not been lodged. Finally, the issue could be raised in the Inquiry proper under s. 39 [of the Native Title Act] when the Tribunal would have to consider whether any failure to negotiate in good faith is a relevant matter. These are options which the native title party may care to examine, but they are not for me to advise on.'
I accept the submission made by counsel for the applicant (Mr M.L. Barker QC) that the Tribunal's reasons show that it (the Tribunal) held that it had no power to consider the question whether compliance with s. 31(l)(b) was a condition precedent to the making of an application under s. 35. Mr G.R. Donaldson, counsel for the Government party, argued that the Tribunal did not so hold. The matter is not entirely free from doubt. However, the reference to '... the Tribunal is the wrong place to obtain the orders it seeks ...' leads me to the conclusion that the Tribunal decided that it had no power to consider the above question. If the applicant's submissions are well-founded, the question is a fundamental one because it concerns whether the Tribunal had jurisdiction to determine the Government party's application.
The applicant contends that the Tribunal may only proceed to determine an application under s. 35 of the Act if the period of six months from the giving of the notice under s. 29 (1) has expired, and no agreement has been reached as a result of negotiations conducted in good faith pursuant to s. 31 of the Act. The applicant submits that the Tribunal has the ' ... function, power or jurisdiction ... to determine these factual preconditions' in order to decide whether an application, made to it under s. 35 of the Act, is competent.
The right to negotiate, so it is put, is an important one. First, the applicant points to the provisions of s. 33 (set out above) relating to the possibility of inclusion in the negotiations of conditions concerning the payments calculated in the manner referred to in that section. Secondly, the applicant refers to the following observations in the reasons for judgment of Brennan C.J., Dawson, Toohey, Gaudron and Gummow JJ in the decision of the High Court of Australia in North Ganalanja Aboriginal Corporation v. Queensland [1996] HCA 2; (1996) 135 ALR 225 at pp. 235-236:
'Subdivision B of Div 3 of Pt 2 of the Act denies the governments of the Commonwealth. States and Territories power to confer, inter alia, mining rights in respect of land that is the subject of an accepted claim to native title unless notice of an intention to do so is first given to the registered native title claimant and a procedure is followed through which ordinarily requires the government to negotiate with the claimants and the miner.The negotiation is assisted, if desired, by mediation by the NNTT or other arbitral body. The procedure may terminate either in an agreement or in a determination by the NNTT or other arbitral body that the government may or may not confer the mining rights in question (or some other interest to which Subdiv B applies) or may do so subject to specified conditions. Time limits for applying for and for making of determinations of this kind are prescribed. Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.
It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by government to confer mining rights and the other rights to which Subdiv B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.'
The applicant says that s. 31(l)(b) of the Act imposes a positive obligation on the Government parry to negotiate in good faith which is of fundamental importance to the realisation of benefits potentially available to a native title party under the Act.
The applicant submits that a duty to negotiate in good faith has a content which requires a party to do more than 'go through the motions of negotiating'. In support of this proposition the applicant referred to matters decided by the Full Bench of the Industrial Relations Commission, to American case law and to published articles on the subject. The respondents do not deny that the duty to negotiate in good faith has a recognisable content. In those circumstances, it is not necessary in the present matter to explore the content of that duty. The applicant relies upon these references as emphasising the importance of the duty to negotiate in good faith. In my view, the importance of such a duty needs no such emphasis. The clear mandatory language employed by Parliament together with the High Court's observations in North Ganalanja sufficiently establish the importance of the duty to negotiate.
The applicant submits that if a negotiation party were able to require the arbitral body to make a determination even though no negotiations had been carried out in good faith then 'the Parliamentary intention reflected in the creation of the right to negotiate would be fundamentally mocked.' It would be ridiculous, so it is submitted, if the Tribunal could proceed to determine the application in a situation where the native title party has a valid complaint about the conduct of the Government party (failing to negotiate in good faith) and was entitled to relief in the form of a writ of mandamus. The applicant submits that the requirement that the Government party negotiate in good faith is a jurisdictional prerequisite to the Tribunal exercising its power to make a determination. In those circumstances, so it is put, the Tribunal had jurisdiction to decide, and should have decided, whether that jurisdictional requirement had been complied with.
It is convenient to deal with that question first. The only grantee parties who took part in these matters were Western Mining Corporation Ltd ('Western Mining'), the second respondent in Application No. WAG 6004 of 1996 (Mr Walley's application), and Mr Gary Mullan, the second respondent in Application No. WAG 6005 of 1996 (Mr Taylor's application). Each of those respondents conceded that it was proper and necessary for the Tribunal to determine whether any jurisdictional facts, which conditioned the Tribunal's jurisdiction, existed. The Government party made no written submission on this point and, in oral argument, conceded 'that the Tribunal ought properly [to] determine certain matters to found its jurisdiction'. However, each of the three respondents contended that compliance with s. 31(l)(b) [which imposes the obligation to negotiate in good faith] was not a condition precedent to the making of an application under s. 35.
In my view, if there is such a condition precedent, then the Tribunal has jurisdiction to determine whether the Government party has complied with s. 31(l)(b) i.e. has negotiated 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 the doing of the act or the doing of the act subject to conditions: Parisienne Basket Shoes Pty Ltd v. Whyte [1938] HCA 7; (1937) 59 CLR 369 at pp. 375-76 and R. v. Blakeley, Ex parte Association of Architects [1950] HCA 40; (1950) 82 CLR 54 at pp. 69-71.
There is also one short construction point advanced by the applicant which can be dealt with conveniently as a preliminary matter. The applicant submits that the reference to 'no such agreement' in s. 35 means 'no agreement arising from good faith negotiations'. I do not think that is the case. The reference to 'no such agreement' in s. 35 follows the reference in s. 34 to '... the negotiation parties make an agreement of the kind mentioned in paragraph 31(i)(b) or subsection 32(5)...'. For present purposes that is in turn a reference, in my view, to that portion of paragraph 31(l)(b) which reads:
...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 s. 34 to s. 31(l)(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] HCA 30; (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(l)(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 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 (WA) 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(l)(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(l)(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] HCA 39; (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 dependent 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(l)(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(l)(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(l)(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 the 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(l). 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(i)(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(l)(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.
For the foregoing reasons I have come to the conclusion that if the Government party has not complied with its obligation under s. 31(l)(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(l)(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.
See [1996] FCA 490; (1996) 137 ALR 561
See also [1996] AboriginalLawB 48; (1996) 3(82) Aboriginal Law Bulletin 14
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/99.html