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Environment Resources and Development Court (Bowering J, Commissioner Jackson, Commissioner Hall)
5 July 1999
[1999] SAERDC37 NT 1/98
Mining – consideration of division 4 of Part 9B of the Mining Act (SA) 1971. Whether previous determination and order of the court should be set aside - whether obligation to negotiate in good faith applies to an Application for determination by the Court initiated pursuant to s63S of the Act - whether the parties negotiated in good faith
The Applicant holds an Exploration Licence to explore in an area of South Australia which includes the northern portion of Lake Gairdner. On 11 February 1997 the Applicant served a notice on the Barngarla people, being the only claimant group at that time to have lodged a claim over the area, initiating negotiations pursuant to s63M of the Mining Act. The Applicant received no response within the relevant period prescribed by the Act, and in March 1998 made application in this Court for an order of the Court pursuant to s63S of the Act.
Prior to a formal hearing of the Court, the parties agreed to negotiate in an attempt to reach agreement on the application. Negotiations were convened between the Applicant and the Barngarla claim group before a Judge and Commissioner of the Court. Two other Aboriginal groups which had since lodged claims over the area, and the Aboriginal Legal Rights Movement, also participated in the negotiations.
The negotiations resulted in an agreement being reached between the parties, which provided for a work area clearance to be carried out in relation to the Applicants’ proposed drilling program. This agreement formed the basis of a consent order and determination made by the Court on 7 May 1998. For the purposes of the Court order the other two Aboriginal parties, and the Aboriginal Legal Rights Movement, were joined as parties.
As a result of the Work Area Clearance survey conducted pursuant to the agreement and the order of the Court, the Applicant was unable to conduct any exploratory drilling on the surface of Lake Gairdner. This was as a consequence of the spiritual, cultural and historic significance of the Lake to various Aboriginal peoples.
On 19 November 1998 the Applicant made a further application to the Court.
The claims of the Applicant considered by the Court were:
1. The requirements in s 63P that the parties negotiate in good faith did not apply to the negotiations the subject of these proceedings. The commencement, by application under s 63S, of the determination procedures by and involving the Court means that the obligation to negotiate in good faith – indeed, any obligation to negotiate at all – pursuant to s 63P has terminated.
2. There is no evidence to support a finding that the claimant parties failed to negotiate in good faith. There was no evidence that the Aboriginal negotiators at the meeting were aware that the cultural significance of Lake Gairdner was such that no drilling would be authorised to occur on its surface. The Aboriginal negotiators at the meeting were authorised by their respective groups to negotiate and reach an agreement for a work area clearance procedure to be carried out. The agreement made it clear that such clearances as would be given would not be given by those at the meeting. There was, at the meeting, neither any pretence on their part nor any overt representation or implication that they were in a position to give any clearance whatsoever.
The application to set aside the order of the Court was dismissed.
The decision is now on appeal to the South Australian Supreme Court.
This is an application to set aside a determination and order made by this Court pursuant to s 63S of the Mining Act 1971, on 7th May 1998. The parties to the proceedings at the time of the making of the order and determination now in question were RMG Services Pty Ltd, the applicant, the Barngarla families, the first respondent, and two parties joined, namely the Biringa and the Wirangu groups, being applicants for native title, who become second and third respondents. The Aboriginal Legal Rights Movement Inc was also a party, being the representative Aboriginal body for the relevant area.
RMG Services is the holder of Exploration Licence No 2257 issued pursuant to s 28 of the Mining Act 1971 on 10th January 1997, which licence, although issued for a term of one year, has been periodically renewed and remains in force. The licence application form discloses the company’s desire to explore for gold, silver, copper, lead and zinc. The licence authorizes the exploration for minerals in areas lying generally within the locality of and over portion of Lake Gairdner. The proposed exploration involves core drilling on a number of sites to determine the geological structure of the subsurface of the land.
On 4th February 1997, RMG published, in both The Advertiser and the Whyalla News, notice of initiation of negotiations with native title parties pursuant to s 63M of the Mining Act. At that time, the Wirangu and Biringa groups had not made their applications for native title. Notice of the initiation of such negotiations (Form 26 of the Mining Regulations) was also served on Mr Henry Croft, representative of the Barngarla Families on or about 11th February 1997. RMG received no response to these notices, either from the Barngarla families or anyone else, within the relevant period as prescribed by s 63S of the Act, and in March 1998, RMG applied to this Court for a determination. The Barngarla families were respondents to that application. In April of that year the Biringa and Wirangu claimants applied to be joined as parties to the application. The hearing of the application for determination by this Court was set down for 7th May 1998
However, prior to the hearing of the application, the parties agreed to negotiate in an attempt to reach an agreement on the application. They met at a conference convened before Judge Trenorden and a Native Title Commissioner of this Court, namely Commissioner Rankine, which was held in the Mallee Park Football Club in Port Lincoln on 28th April 1998. The Biringa and Wirangu claimants and the Aboriginal Legal Rights Movement participated. The negotiations appeared to have occupied most of the day and concluded with an agreement between the parties. The agreement was committed to writing and signed, on that day, by all groups present.
The general thrust of the agreement was that RMG would nominate (presumably to the native title claimants working through a group known as ‘The Eyre Peninsula Working Group’) 20 drill hole coordinates for clearance for the undertaking of exploratory drilling work. A work clearance survey was to be carried out in the manner specified in paragraph 3.2 of the agreement. If any of the identified coordinates were not cleared, RMG was able to nominate alternate drill coordinates. Upon clearance being obtained for the coordinates, RMG had the right to drill a maximum of eight coordinates with the possibility of drilling additional coordinates upon giving fourteen days written notice to The Eyre Peninsula Working Group.
The terms of para 3 of the agreement are as follows:-
3. Work Clearance
3.1 That RMG identify twenty (20) possible drill hole coordinates with a preferred working boundary within the area of the exploration lease (EL2257) and that of those coordinates a maximum of eight (8) coordinates cleared under clause 3.2 shall be drilled (to a maximum depth of 200 metres), provided that if any of the drill coordinates are not cleared then RMG will be able to nominate alternate drill coordinates.
3.2 That a work clearance survey be carried out in respect of each of those sites by a scouting team coordinated by anthropologist Scott Cane and a female anthropologist, yet to be identified, and that the scouting team comprise of up to four (including at least one male and one female) representatives of each of the three claimant groups.
3.3 Upon clearance being obtained for coordinates RMG may proceed to drill at a maximum of eight (8) cleared coordinates with drilling to proceed on a greater number than eight (8) or additional drilling on any one coordinate only upon giving fourteen (14) days written notice to the Eyre Peninsula Working Group through the ALRM.
As a consequence of this agreement, the Biringa and Wirangu claimants became parties to the proceedings and, on 7th May 1998, the Court issued a consent order and determination. The terms of that order are as follows:
Tredordern J, Commissioners Rankine and Hall:
Upon application of the parties hereto, and upon hearing Mr Gomez on behalf of the applicant, Mr Teitzel for the First Respondent, Ms Reid of counsel for the Second Respondent, Mr Broderick of counsel for the Third Respondent and Ms Joske of counsel for the Fourth Respondent, and UPON THE COURT making a determination, the Court HEREBY ORDERS, by consent:
1. The Applicant may undertake mining operations upon the land comprised within Exploration Licence No’d.2257, (the EL) issued to the Applicant pursuant to the Act on the 10th day of January 1997 and now expiring on the 9th day of January 1999, such operations to be conducted solely in the nature of exploration activity subject to the following conditions:
1.1 Prior to exploration activity commending upon the EL the first, second and third respondents (the claimants) shall undertake a work clearance survey and provide forthwith thereafter a written report of that survey indicating whether the areas of proposed exploration activity are approved by them in respect of any or all areas nominated by the Applicant.
1.2 Prior to the work clearance survey commencing on the EL the Applicant shall provide to ALRM as agent for the claimants twenty or such lesser number as the Applicant may decide, potential drill hole map co-ordinates specifying in respect of each co-ordinate a preferred area of interest surrounding each co-ordinate. Each co-ordinate and the nominated adjacent area surrounding it shall comprise the areas within the EL which are the subject of the work clearance survey.
1.3 1.3.1 The Applicant may select not more than eight only of the cleared potential drill hole co-ordinates which may be drilled to a maximum of two hundred metres.
1.3.2 In the event that any cleared drill hole co-ordinate is unable to be drilled to the depth desired by the Applicant another hole or holes may be commenced at an adjacent point until a depth satisfactory to the Applicant is obtained SUBJECT however to any limitation or condition which may be placed upon the area surrounding the cleared co-ordinate and specified in the survey report delivered by the claimants.
1.3.3 In the event that any potential drill hole co-ordinate is not cleared by the claimants the Applicant may provide during the course of the survey alternative drill hole co-ordinates until the aggregate of twenty co-ordinates which may be drilled, is obtained.
1.3.4 The applicant may drill more than an aggregate of eight holes within the areas cleared by the survey providing it gives the claimants through ALRM not less than fourteen days written notice of its intention and the notice specifies the number of holes and co-ordinate area in which they will be drilled.
1.4 The work clearance survey shall be co-ordinated by a male and female anthropologist and the scouting team shall comprise not more than four persons (including one female and one male) nominated by each of the claimants and shall be completed by the delivery of the report not later than the 15th day of July, 1998.
1.5 The costs and disbursements incurred in respect of undertaking the work clearance survey shall be paid in accordance with the agreement made between the parties on the 28th day of April, 1998.
1.6 1.6.1 The drill hole co-ordinates nominated by the Applicant will be confidential to the Applicant, the members of the scouting party and the anthropologists co-ordinating the work clearance survey.
1.6.2 The claimants are under no obligation to disclose cultural information t the Applicant or any of its employees agents or contractors.
1.7 The Applicant shall comply with any direction or requirement of the Minister responsible for the care control and management of the Lake Gairdner National Park.
It is clear that there were a number of issues which were important to RMG throughout the negotiations, and in the formulation of the agreement and the Court order. Two of those issues were the timing of the drilling and the ability to drill on the surface of Lake Gairdner. RMG wanted the clearance survey to be undertaken by mid-July so that it could commence its drilling on the lake surface in the following November. However, the report relating to the work clearance survey was not delivered by the 15th July 1998, as envisaged by paragraph 1.4 of the Court’s order. The order was subsequently varied to change that date to 7th September 1998, but that date also passed without the survey being undertaken. The reasons for these delays have been put to us and we pass no comment upon them other than to say that the evidence satisfies us that RMG reluctantly accepted the delay and that it is no longer an issue between the parties. However, the same cannot be said with respect to RMG’s desire to drill on the surface of Lake Gairdner, for a substantial portion of the area covered by exploration licence 2257 lies over the surface of the northern portion of the lake. It is that issue which has lead to these proceedings.
After the issue of the Court order on 7th May 1998, RMG nominated twenty potential drill hole sites in accord with para 1.2 of the order. Nine of the sites were located on land abutting the edge of the lake and eleven on the surface of the lake. The work clearance report was forwarded to RMG under cover of a letter dated 5th November 1998. Upon perusing the report, its Managing Director, Mr Gomez, was disappointed to find that, whilst the nine designated sites abutting the lake had been cleared, none of the eleven located on the surface of the lake had been cleared. It was important to RMG that its drilling survey cover both the surface of the lake and adjacent areas. Part 3 of the report contained the following paragaph:-
3. Summary of Findings
Lake Gairdner is spiritually, culturally and historically important to various Aboriginal people from different language groups. Lake Gairdner was described by the W.A.C. Working Group as a ‘ngura miil-miilpa’ (a very important cultural and spiritual place that is dangerous and subject to prohibitions and cultural restrictions). Consequently the proposed drill sites that have been cleared are subject to conditions in order to protect the area’s sacred and cultural heritage.
On 19th November, 1998, RMG made a further application to the Court. The application falls into two sections, the first being ‘a summary of events’ and the second specifying the four orders sought by the applicant. The summary of events contains the following allegations:
During the meeting of April 28 with the elders of the claimant groups and their male anthropologist, which lasted all day, the meeting was never advised about the spiritual and cultural belief of the claimants about Lake Gairdner or that no exploration would be allowed on Lake Gairdner.
At the end of the day, an agreement dated April 28th 1988, was entered into between the applicant, the claimants and the ALRM.
...
Given the significance attached to Lake Gairdner in the report, it is apparent that the claimants and the male anthropologist knew at the meeting of April 28th 1998, that no exploration work would be allowed on Lake Gairdner. Despite this the claimants and their advisers encouraged the applicant to enter into the agreement of April 28th 1998, to its detriment. The claimants did not negotiate in good faith in failing to disclose the above information and in fact misrepresented the situation by remaining silence when it was clear that drilling on the lake was fundamental to the applicant’s exploration programme.
On the basis of these allegations, RMG now seeks the following orders:
In support of its application, RMG filed an affidavit sworn by its Managing Director, Mr Gomez.
The respondents to the application are, by and large, the respondents to the initial s 63S application filed in March 1998, including the parties joined to that application. The respondents challenged the jurisdiction of the Court to set aside the determination made by it on 7th May 1998. Having heard the parties, Her Honour decided that the Court does have the necessary jurisdiction. Her Honour’s judgement, issued on 23rd December, 1998 concluded with the following paragraph:
The Court has jurisdiction to set aside the order and determination made on May 7th 1998, and to remake a determination in this matter, provided the applicant can show sufficient cause. It does not have jurisdiction to make an award of damages as sought by the applicant. It is now for the applicant to show cause why the order and determination should be set aside.
The application came on for hearing before the Court on 27th April 1999. Mr Robertson appeared for RMG and Mr Collett for the respondents. Mr Robertson’s submissions were two-fold, namely:
1. The provisions of s 63P of the Mining Act required all parties at the meeting at Mallee Park to negotiate in ‘good faith’.
2. The first three respondents did not negotiate in good faith as required by s 63P.
For the respondents, Mr Collett responded thus:
1. The provisions of Section 63P did not apply to the Mallee Park meeting.
2. At that meeting, the respondents negotiated in ‘good faith’ as that term is used in s 63P.
From the outset, Mr Robertson acknowledged that, if the provisions of s 63P did not apply to the Mallee Park meeting, his client’s application cannot succeed.
The question of whether the obligations imposed upon the parties by s 63P depends upon the construction of Div 4 of Pt 9B of the Mining Act. The terms of that division headed ‘Negotiating Procedure’ are as follows:
Div 4 – Negotiationg Procedure
Types of agreement authorising mining operations on native title land
(1) An agreement authorising mining operations on native title land (a ‘native title mining agreement’) may
(a) authorise mining operations by a particular mining operator; or
(b) authorise mining operations of a specified class within a defined area by mining operators of a specified class who comply with the terms of the agreement.
(2) If a native title mining agreement is negotiated between a mining operator who does not hold a production tenement for the relevant land, and native title parties who are claimants to (rather than registered holders of) native title land, the agreement cannot extend to mining operations conducted on the land under a future production tenement.
(3) An umbrella authorisation can only relate to prospecting or mining for precious stones over an area of 200 square kilometres or less.
(4) If the native title parties with whom a native title mining agreement conferring an umbrella authorisation is negotiated are claimants to (rather than registered holders of) native title land, the term of the agreement cannot exceed ten years.
(5) The existence of an umbrella authorisation does not preclude a native title mining agreement between a mining operator and the relevant native title parties relating to the same land, and if an individual agreement is negotiated, the agreement regulates mining operations by a mining operator who is bound by the agreement to the exclusion of the umbrella authorisation.
Negotiation of agreements
(1) A person (the ‘proponent’) who seeks a native title mining agreement may negotiate the agreement with the native title parties.
(2) The proponent must be
(a) if an agreement conferring an individual authorisation is sought – the mining operator who seeks the authorisation;
(b) if an agreement conferring an umbrella authorisation is sought – the Minister or an association representing the interests of mining operators approved by regulation for the purposes of this section.
Notification of parties affected
(1) The proponent initiates negotiations by giving notice under this section.
(2) The notice must
(a) identify the land on which the proposed mining operations are to be carried out; and
(b) describe the general nature of the proposed mining operations that are to be carried out on the land.
(3) The notice must be given to
(a) the relevant native title parties; and
(b) the ERD Court; and
(c) the Minister.
(4) Notice is given to the relevant native title parties as follows:
(a) if a native title declaration establishes who are the holders of native title in the land - the notice must be given to the registered representative of the native title holders and the relevant representative Aboriginal body for the land;
(b) if there is no native title declaration establishing who are the holders of native title in the land - the notice must be given to all who hold or may hold native title in the land in accordance with the method prescribed by Part 5 of the Native Title (South Australia) Act 1994.
What happens when there are no registered native title parties with whom to negotiate
Section 63N.
(1) If, two months after the notice is given to all who hold or may hold native title in the land, there are no native title parties in relation to the land to which the notice relates, the proponent may apply ex parte to the ERD Court for a summary determination.
(2) On an application under subsection (1), the ERD Court must make a determination authorising entry to the land for the purpose of carrying out mining operations on the land, and the conduct of mining operations on the land.
(3) The determination may be made on conditions the Court considers appropriate and specifies in the determination.
(4) The determination cannot confer a conjunctive or umbrella authorisation.
Expedited procedure where impact of operations is minimal
Section 63O
(1) This section applies to mining operations that
(a) will not directly interfere with the community life of the holders of native title in the land on which the operations are to be carried out; and
(b) will not interfere with areas or sites of particular significance, in accordance with their traditions, to the holders of native title in the land on which the operations are to be carried out; and
(c) will not involve major disturbance to the land on which the operations are to be carried out.
(2) If the proponent states in the notice given under this Division that the mining operations to which this section applies and that the proponent proposes to rely on this section, the proponent may apply ex parte to the ERD Court for a summary determination authorising mining operations in accordance with the proposals made in the notice.
(3) On an application under subsection (2), the ERD Court may make a summary determination authorising mining operations in accordance with the proposals contained in the notice.
(4) However, if within two months after notice is given, a written objection to the proponent’s reliance on this section is given by the Minister, or a person who holds, or claims to hold, native title in the land, the Court must not make a summary determination under this section unless the Court is satisfied after giving the objectors an opportunity to be heard that the operations are in fact operations to which this section applies.
Negotiating procedure
Section 63P
(1) The proponent and native title parties must negotiate in good faith and accordingly explore the possibility of reaching an agreement.
(2) However, the obligation to negotiate does not arise if the case is one where a summary determination may be made.
(3) If any of the negotiating parties requests the ERD Court to do so, the Court must mediate among the parties to assist in obtaining their agreement.
(4) The Minister may (personally or by representative) intervene in negotiations under this Division.
Agreement
Section 63Q
(1) An agreement negotiated under this Division may provide for payment to the native title parties based on profits or income derived from mining operations on the land or the quantity of minerals produced.
(2) The basis of the payment may be fixed in the agreement or left to be decided by the ERD Court or some other nominated arbitrator.
(3) An agreement must deal with
(a) notices to be given or other conditions to be met before the land is entered for the purposes of carrying out mining operations; and
(b) principles governing the rehabilitation of the land on completion of the mining operations.
(4) If agreement is reached between the proponent and the native title parties authorising mining operations on the native title land, the proponent must lodge a copy of the agreement with a mining registrar and the mining registrar will, subject to this section, register the agreement.
(5) If the Minister is of the opinion that there is reason to believe that the agreement may not have been negotiated in good faith, the Minister may, within two months after the copy of the agreement is lodged for registration with the mining registrar, make an order prohibiting registration of the agreement.
(6) A party to an agreement may appeal against an order under subs (5) to the ERD Court and the Court may, on appeal
(a) confirm or revoke the Minister’s order; and
(b) if the Court considers it appropriate, make a determination authorising entry on the land to carry out mining operations, and the conduct of mining operations on the land, on conditions determined by the Court.
Effect of registered agreement
Section 63R
(1) A registered agreement negotiated under this Division is (subject to its terms) binding on, and enforceable by or against the original parties to the agreement and
(a) the holders from time to time of native title in the land to which the agreement relates; and
(b) the holders from time to time of any exploration authority or production tenement under which mining operations to which the agreement relates are carried out.
(2) If a native title declaration establishes that the native title parties with whom an agreement was negotiated are not the holders of native title in the land or are not the only holders of native title in the land, the agreement continues in operation (subject to its terms) until a fresh agreement is negotiated under this Part with the holders of native title in the land, or for 2 years after the date of the declaration (whichever is the lesser).
(3) Either the holders of native title in the land or the mining operator may initiate negotiations for a fresh agreement by giving notice to the other.
(4) A registered agreement that authorises mining operations to be conducted under a future mining tenement is contingent on the tenement being granted or registered.
Application for determination
Section 63S
(1) If agreement between the proponent and the native title parties is not reached within the relevant period, any party to the negotiations or the Minister may apply to the ERD Court for a determination.
In this subsection the ‘relevant period’ is
(a) if the mining operations to which the negotiations relate are merely of an exploratory nature - four months from when the negotiations were initiated; or
(b) in any other case - six months from when the negotiations were initiated.
(2) On an application under this section, the ERD Court may determine
(a) that mining operations may not be conducted on the native title land; or
(b) that mining operations may be conducted on the native title land subject to conditions determined by the Court.
(3) If the ERD Court determines that mining operations may be conducted on native title land, the determination
(a) must deal with the notices to be given or other conditions to be met before the land is entered for the purposes of mining operations; but
(b) cannot provide for payment to the native title parties based on profits or income derived from mining operations on the land or the quantity of minerals produced.
(4) The ERD Court must make its determination on an application under this section within the relevant period unless there are special reasons why it cannot do so.
[In this subsection, the ‘relevant period’ is -(a) if a determination is sought only for exploring - four months from when the application is made; or
(b) in any other case - six months from when the application is made.]
(5) The representative Aboriginal body for the area in which the land is situated is entitled to be heard in proceedings under this section.
Criteria for making determination
Section 63T
(1) In making its determination, the ERD Court must take into account the following:
(a) the effect of the proposed mining operations on -
(i) native title in the land; and
(ii) the way of life, culture and traditions of any of the native title parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land in accordance with their traditions; and
(v) any area or site, on the land concerned, of particular significance to the native title parties in accordance with their traditions; and
(vi) the natural environment of the land concerned;
(b) any assessment of the effect of the proposed mining operations on the natural environment of the land concerned
(i) made by a court or tribunal; or
(ii) made, or commissioned, by the Crown in any capacity or by a statutory authority;
(c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the land concerned;
(d) the economic or other significance of the proposed mining operations to Australia and to the State;
(e) any public interest in the mining operations proceeding;
(f) any other matter the ERD Court considers relevant.
(2) This section does not affect the operation of another law of the State or the Commonwealth for the preservation or protection of areas or sites of particular significance to Aboriginal people.
Limitation on powers of Court
Section 63U
(1) The ERD Court cannot make a determination conferring a conjunctive or umbrella authorisation unless the native title parties are represented in the proceedings and agree to the authorisation.
(2) A conjunctive authorisation conferred by determination cannot authorise mining operations under both an exploration authority and a production tenement unless the native title parties are the registered holders of (rather than claimants to) native title land.
(3) An umbrella authorisation conferred by determination
(a) can only relate to prospecting or mining for precious stones over an area of 200 square kilometres or less; and
(b) cannot authorise mining operations for a period exceeding 10 years unless the native title parties are registered holders of (rather than claimants to) native title land.
Effect of determination
Section 63V
(1) A determination under this Division
(a) must be lodged with a mining registrar;
(b) must be registered two months after it was lodged for registration unless it has in the meantime been overruled by the Minister; and
(c) takes effect on registration.
(2) A determination registered under this Division has effect as if it were a contract between the proponent and the native title parties.
(3) A registered determination is (subject to its terms) binding on, and enforceable by or against the original parties to the proceedings in which the determination was made and
(a) the holders from time to time of native title in the land to which the determination relates; and
(b) the holders from time to time of any exploration authority or production tenement under which mining operations to which the determination relates are carried out.
(4) If a native title declaration establishes that the native title parties to whom the determination relates are not the holders of native title in the land or are not the only holders of native title in the land, the determination continues in operation (subject to its terms) until a fresh determination is made, or for 2 years after the date of the declaration (whichever is the lesser).
(5) A determination under this Part that authorises mining operations to be conducted under a future mining tenement is contingent on the tenement being granted or registered.
Ministerial power to overrule determinations
Section 63W
(1) If the Minister considers it to be in the interests of the State to overrule a determination of the ERD Court under this Part, the Minister may, by notice in writing given to the ERD Court and the parties to the proceedings before the Court, overrule the determination and substitute another determination that might have been made by the Court.
(2) However
(a) the Minister cannot overrule a determination
(i) if more than two months have elapsed since the date of the determination; or
(ii) if the Minister was the proponent of the negotiations leading to the determination; and
(b) the substituted determination cannot create a conjunctive or umbrella authorisation if there was no such authorisation in the original determination nor can the substituted determination extend the scope of a conjunctive or umbrella authorisation.
No re-opening of issues
Section 63X
If an issue is decided by determination under this Part, the parties to the proceedings in which the determination was made cannot make an agreement that is inconsistent with the terms of the determination unless the ERD Court authorises the agreement.
When determining whether the provisions of s 63P apply to the Mallee Park meeting, it is necessary to bear in mind several preceding events. The first is that RMG gave the notice required by s 63M of the Act to Mr Henry Croft, the representative of the Barngala Families, on 11th February 1997. The affidavit sworn on 4th March 1998, by Mr Gomez discloses that he also gave the other notices required by subs 63M(3). However, he gave no such notices to either the Biringa or the Wirangu claimants because, at that time, they were not claimants. Be that as it may, by giving the notices which it gave, RMG initiated negotiations for the purpose of Div 4 – see subs 63M(1). It received no response to such notices, with the consequence that no negotiations ensured and no agreement between the parties was concluded. This meant that, in terms of s 63S of the Act, RMG became entitled, at the end of the relevant period - in this case, four months – to apply pursuant to s 63S to this Court for a determination that mining operations may be conducted on the land. That application was made well after the exploration of the relevant period, namely on 5th March 1998. By that time the Biringa and Wirangu groups had lodged applications, claiming native title over land included within the mining lease, with the Native Title Tribunal pursuant to the Native Title Act 1993 (Cth). At a directions hearing convened before the Court on 6th April 1998, they applied to be joined as parties to the proceedings, but no decision on their application was made on that day. However, it was agreed, at that hearing, that a further conference would be held in an endeavour to see whether the issues between the parties (and, presumably, the Biringa and the Wirangu claimants) could be resolved. The Court’s file note of the outcome of that directions hearing is in the following terms:
Informal conference to take place in Port Lincoln – 28-29/4/98 with Trenorden J and Native Title Commissioner.
As stated, the conference agreed upon at the directions hearing took place at the Mallee Park Football Club in Port Lincoln on 28th April 1998. There is some dispute between the parties as to the ‘status’ of that conference. For the respondents, Mr Collett submitted that the question for determination before the Court and the subject of the conference was a ‘native title question’ as defined by s 3 of the Native Title Act 1994 (SA), and that the conference was thus a conference conducted pursuant to s 8 of that Act. Mr Robertson submitted that it was part of the negotiation procedure to which s 63P of the Mining Act applied, and that thus the parties attending were under a legal obligation to ‘negotiate in good faith and accordingly explore the possibility of reaching an agreement’.
Without expressing any view on the question of whether the issues which were then before the Court for determination constituted a ‘native title question’ as defined by s 3 of the Native Title Act 1994 (SA) we have come to the conclusion that the meeting at Mallee Park was not such a conference. The proceedings adopted at that meeting fly in the face of such a number of the requirements of Div 3 of Pt 3 of the Native Title Act (SA) that we do not think it open to us to find either that it was a conference conducted pursuant to s 8 of the Native Title Act (SA), or that any of the parties at that conference so regarded it. For example, although one of the members of the Court attending the conference is a Native Title Commissioner and could have been selected by the Court as a mediator to so preside, there is nothing to suggest that he was so selected. Rather than proceed before a Native Title Commissioner acting as a mediator, the conference was conducted before both a Judge and a Native Title Commissioner of the Court. Furthermore, we note that there are several other provisions of the Native Title Act (SA) relating to such conferences which were not complied with.
The question of whether the Mallee Park conference was a negotiation to which the provisions of s 63P of the Mining Act applied is less easily resolved. In approaching this question, we have not overlooked Mr Robertson’s strong submission that the provisions of Div 4 contain no ‘statutory imperative’ clearly closing the door on any suggestion that the provisions of s 63E did not apply to the Mallee Park meeting. We accept his submission that the obligation to negotiate in good faith as enshrined in the section is an important plank in the negotiating procedure, a plank which these provisions of the Mining Act share with other native title legislation at both Federal and State levels. In his words, to say that the obligation to negotiate in good faith as required by the section did not apply to the Mallee Park meeting would mean that the respondents ‘would be able to bring in through the back door that which they cannot legitimately bring in through the front’ – ie, they were required to negotiate in good faith at one stage in the proceedings while being subject to no such requirement at a later stage in the same proceedings.
Having considered the provisions of Div 4, we have come to the conclusion that the requirement that the ‘proponent and the native title parties must negotiate in good faith’ as found in s 63P did not apply to the negotiators at the Mallee Park meeting. We note, of course, that not all of those present at that meeting were parties – the Biringa and Wirangu claimants were then yet to be joined as parties to the proceedings – although, when endeavouring to interpret Div 4, we have placed no reliance upon this. However, this may mean that, if the section did apply to that meeting, those claimants were not bound by its provisions.
In our view, Div 4 specifies the procedure to be followed by a person who seeks to undertake mining operations on native title land initiating negotiations for the purpose of negotiating a native title mining agreement and concluding, in the absence of such agreement, with the making of a determination by this Court. The terms of the Division cover a variety of possible circumstances, eg, where there are no registered native title parties with whom to negotiate, where the impact of the proposed operations will be minimal and where an agreement is not reached. The Division provides a specific course of action with respect to each of these circumstances. For example, where there are no registered native title parties with whom to negotiate, the persons seeking a mining agreement may apply ex parte to this Court for a summary determination – s 63N. However, where there are registered native title parties and an agreement is negotiated, the Division makes provision for the registration of that agreement and possible challenge of it by the Minister on the ground that it may not have been negotiated in good faith – s 63Q. On the other hand, where there are native title parties with whom the proponent is unable to reach agreement within the relevant period, provision is made for any party to apply to this Court for a determination – s 63S. If such an application is made the Court is required, in making its determination, to take into account a fairly lengthy list of criteria – s 63T – some of which criteria the parties may not be required to take into account when negotiating an agreement. Thus the question now before the Court becomes one of where, in the procedure envisaged by Div 4, the provisions of s 63T sit.
In our view, the procedure envisaged by Div 4 falls into two distinct stages, the first being the negotiations between the parties and the second being the proceedings before the Court should such negotiations not conclude, within the relevant period, with an agreement. Apart from receiving a notice of the initiation of negotiations pursuant to subs 63M(3), this Court plays no role at all in any of the negotiation procedures. In the course of such negotiations, the parties are at liberty to have regard to and to take into account as few or as many matters as they wish, and are at liberty to conclude an agreement providing ‘for payment to the native title parties based on profits or income derived from mining operations on the land or the quantity of minerals produced’ – s 63Q. Although such an agreement may provide for the basis of such payment to be decided by this Court acting as an arbitrator, such possibility does not arise as part of the negotiations but rather as a consequence of the terms of the agreement once it has been concluded.
As Mr Robertson pointed out, there is nothing in Div 4 which says either expressly or by necessary implication that the obligation conferred upon the parties to negotiate in good faith imposed by s 63P terminates upon the expiration of the relevant period as calculated in accord with s 63S. Indeed, there is much to suggest that it may extend beyond the expiration of the relevant period if the mining proponent does not, immediately upon the expiration of such period, apply for a determination pursuant to s 63S. That is what occurred in this case. RMG issued the notice initiating proceedings in February 1998, which means that the relevant period expired in June that year, but did not apply to this Court for a determination until March 1998. Although it is not necessary for us to decide the issue, there is every reason to believe that the obligations imposed by s 63P extended until at least that date.
However, upon an application being made to this Court pursuant to s 63S for a determination, there is a significant change in the direction of the procedure specified in Div 4. In the absence of special reasons, the Court must make its determination within a particular time, is subject to certain limitations and is required to take a list of criteria into account. In our view, it is implicit, in this change of direction, that the commencement, by application under s 63S, of the determination procedures by and involving the Court means that the obligation to negotiate in good faith – indeed, any obligation to negotiate at all – pursuant to s 63P has terminated. As we have said, the Court (unless requested to mediate pursuant to subs 63P(3)) has no role to play in s 63P negotiations – it is our view that, once the Court becomes involved in the matter, the regime changes. The negotiations, procedures and obligations envisaged by s 63P are swept away and are not revived should, as occurred in this case, there be a pre-hearing conference presided over by members of the Court for the purpose of seeing whether those matters which the Court may properly deal with in the course of its determination – which matters, as we have said, are different from those matters which may be dealt with between the parties alone when negotiating – can be agreed.
For these reasons, our view on the first question is as follows:
Given the limited ground upon which the agreement was challenged, the resolution of this question is sufficient to dispose of the application presently before the Court. However, in view of the nature and extent of the evidence led in the course of the hearing, we think it appropriate to briefly express our view upon the question of whether the Mallee Park negotiations were conducted in good faith. With respect to this question, we wish to make two preliminary comments, the first of which is that the allegation of lack of good faith has been made against the Aboriginal parties to these proceedings, ie, the first three respondents. It is principally the conduct of these parties which was scrutinized in the course of the hearing. We are of the view that the onus of showing a lack of good faith lies upon the applicant, which onus we regard as being the normal civil onus.
The second matter is that the Court has not been asked in these proceedings to set the determination aside on any equitable or other grounds other than that the Mallee Park negotiations were not conducted ‘in good faith’ as that term is used in s 63P. As a consequence, counsel referred us to a number of authorities in which the meaning of the words ‘negotiate in good faith’ as found in subs 31(1) of the Native Title Act 1993 (Cth) were considered. By and large, those authorities involved a consideration of whether the whole negotiation process could be said to involve good faith – eg, whether failure to respond to telephone calls, promptly supply documents, arrange meetings in due time and comply with reasonable requests from other parties relating to any part of the negotiating procedure constituted lack of good faith. In so far as none of those case dealt specifically with what occurred once a negotiation meeting had commenced, they are not directly on point. We note also that s 31 does not apply to all parties to the negotiations but only to ‘the Government party’, a fact which must be borne in mind when considering the relevant comments as to whether what was or was not done constituted negotiations in good faith. Nevertheless, we have had regard to them and found them to be of assistance.
In the interests of brevity, we refer, in this judgement, to only two such authorities. The first is Western Australia v Taylor (1996) 134 FLR at 211. In that case Member Sumner commenced his examination of the meaning of the words by turning to dictionary definitions. He then considered the interpretation which had been placed on those words when used in other statutes. He noted and took into account the role that the Government party played in the scheme of the negotiation and that s 31 placed the obligation to negotiate in good faith only on the Government party. He concluded, at p 224 of the report, by setting out a list of 18 of what he called ‘useful indicia of whether the Government party has negotiated in good faith’. We shall return to those indicia shortly – sufficient, for the moment, for us to express the view that only a limited number of those indicia appear applicable to the meeting at Mallee Park. To the extent that they are applicable, we have taken them into account.
The second is Strickland (on behalf of the Maduwongga people) v Western Australia (1998) 3 AILR 532. In that case, Nicholson J, adopted, by and large, the criteria specified by Member Sumner in Taylor’s case and, having reviewed the various authorities, expressed the view that:
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.
His Honour noted the frequent use of the term in bankruptcy legislation and referred to the judgement of Kirby J in Cannane v Cannane Pty Ltd [1998] HCA 26; (1998) 153 ALR 163, a case to which Mr Robertson, in his submissions to us, also referred. His Honour expressed the view that:
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 ... Furthermore, it is accepted a Government party’s negotiating conduct may also be viewed objectively.
Later, in his judgement, His Honour concluded his consideration of this question with the words:
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 requirement 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).
The Court had before it a considerable body of evidence relating to what happened at the Mallee Park meeting. The evidence consisted of two affidavits sworn by Mr Rodolfo Gomez, the Managing Director of the applicant company, and written statements from Dr Scott Cane, an archaeologist and anthropologist, and Ms Georgina Reid, a solicitor employed by Johnston Withers, solicitors for the Biringa claimants. In addition to providing the written material to which we have referred, all three presented verbal evidence to the Court and were extensively cross-examined. From their evidence, we have gleaned some idea - but by no means the full picture – of what occurred at that meeting.
One of the issues in dispute between the parties to these proceedings is whether the Aboriginal people who attended the Mallee Park meeting for the purpose of negotiating on behalf of the Aboriginal parties involved were aware that the whole of the surface of Lake Gairdner (or at least the whole of that portion lying within Exploration Licence No.2257) is of such cultural significance that the Aboriginal people whom they represented would not agree to any drilling at all thereon. As Mr Robertson pointed out, they are the only people who can really say what they either knew or did not know. He submitted that the failure of Mr Collett to call any of these people constitutes an irrefutable basis upon which we should find that at least some of these people were aware of the extent and consequences of such cultural significance. He referred us to the High Court decision of Jones v Dunckel [1959] HCA 8; (1958) 101 CLR 298. Briefly, that was a case in which two vehicles came into collision on a hilly road in the course of a wet night. Apart from the drivers of the vehicles, there were no witnesses to the accident. One of the drivers, the plaintiff’s husband, died in the accident. At the trial, the defendant failed to call the other driver. The jury found in favour of the defendant. On appeal, the High Court concluded that the evidence that had been presented furnished factual material from which the jury might legitimately have concluded that the driver of the defendant’s vehicle was guilty of negligence and had thereby caused the death of the other driver. Kitto, Menzies & Windeyer JJ expressed the view that where an inference may be drawn from evidence led by one party, the failure of the other party to call evidence available to it to rebut that inference may be properly taken into account when determining whether the inference should be relied upon. However, until there is evidence to support the inference the failure of the other party to call evidence to rebut an inference for which there is no evidentiary basis is not a ground for assuming the inference to be true. Kitto J expressed it thus:
One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that, in that actual case, a specific event happened or a specific state of affairs existed.
At p 319, Windeyer J said:
But silence may amount to more than acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts. Until facts were proved from which an inference of negligence could be drawn, the defendant was not called upon to say anything.
With reference to Jones v Dunckel , Cox J succinctly summarized the situation in Spence v Demasi (1998) 48 SASR 536 when he commented, at p 547, that:
The circumstances must be such as to make it natural for the particular party to call the witness in question.
Mr Collett submitted to us that the principle espoused in Jones v Dunckel did not require him to call any of the Aboriginal negotiators because there is no evidence whatsoever from which we can reasonably infer that the Aboriginal people who attended the Mallee Park meeting were aware of either the cultural significance of the lake’s surface or the consequences of such significance. He said that there is no inference which can properly be translated into a finding on the basis of his failure to call any of the Aboriginal people who attended the meeting.
Having considered the evidence, we have come to the conclusion that there is no evidence from which any inference may be reasonably drawn that the Aboriginal people who attended the Mallee Park meeting were aware of either the level of cultural significance attributed by the groups whom they represented to the surface of Lake Gairdner or the practical consequences of such cultural significance. We know, from the evidence, who those people were, and have some, albeit scant, knowledge of their backgrounds. We know that only one of them, namely Mr Smith, has been initiated, but we also know that he is a fairly young man who has not been long initiated. He lives at Coober Pedy.
It is nowadays generally recognized that there are different levels of knowledge between different members of the same Aboriginal community or group, and that, in many cases, such differences are substantial. In the circumstances, we do not think that the fact that the people concerned are Aboriginal people who attended this meeting (presumably) at the request of the groups whom they represented forms a reasonable basis for an inference that they were aware of the cultural significance of the lake’s surface.
Thus, applying the principle espoused in Jones & Dunckel, we make no findings adverse to the respondents on the basis of their failure to call any of the Aboriginal people who attended the meeting in question.
Before proceeding to briefly express our findings as to what happened at the meeting, we think it appropriate to make one point clear, namely that we have not assumed that everything which was said at the meeting was necessarily heard and appreciated by Mr Gomez. As Mr Gomez said in the course of his evidence, he was alone at the meeting. The respondents’ consisted of four lawyers, six Aboriginal people (the three claimants each represented by two) and Dr Cane. The members of the Court consisted of Judge Trenorden and Commissioner Rankine, assisted by a clerk. Mr Gomez alone represented RMG. In the circumstances, we do not think it unreasonable to assume that there may have been occasions in the course of the meeting where there was, perhaps, ‘chit chat’ between some members on one side of the table or comments made to the meeting generally which Mr Gomez may perhaps have not heard or appreciated. For example, there was some dispute between the parties as to whether Dr Cane used the word ‘tjurkurpa’ in the course of putting his views to the meeting. The evidence satisfies us that he did, but we do not wish this conclusion to be taken as a finding that Mr Gomez both heard it and appreciated what it meant. In particular, we are not prepared to assume that, in the circumstances of the meeting, that the use of that word by Dr Cane constituted an adequate warning to Mr Gomez that the surface of the lake was so culturally sensitive that he should have been aware that he may not have been able to drill on it.
That said, we briefly record our pertinent findings as follows:
In his closing address to us, Mr Robertson referred to the list of criteria, set out in the judgement of Member Sumner in Western Australia v Taylor, as matters to be considered when determining whether negotiations have proceeded in good faith. One of those criteria is in the following terms:
(XI) Sending negotiators without authority to do more than argue or listen.
Mr Robertson submitted that the respondents in this case did not act in good faith in that they had sent, to the meeting, representatives who they knew were not aware of the cultural significance of the lake surface and had no authority to negotiate any site clearances. The lack of good faith was compounded, he submitted, by the fact that Mr Gomez was not informed of this.
In our view, this is the closest that Mr Robertson has come to pointing to any lack of good faith on the part of the respondents, and we have considered this submission very carefully. At the end of the day, we cannot accept it. The inescapable fact is that the meeting resulted in an agreement in terms which the Aboriginal negotiators were authorized to execute. The fact that one of the principal prongs of the agreement was a clearance survey the execution of which would involve a number of people not present at that meeting must, as a matter of logic if nothing more, has meant that the Aboriginal people at the meeting were not able to clear the sites. The agreement made it quite clear that such clearances as would be given would not be given by those at the meeting. There was, at the meeting, neither any pretence on their part or any overt representation or implication that they were in a position to give any clearance whatsoever. They agreed to as much as they were able and authorized to agree, namely a clearance survey procedure. There is, in our view, nothing to support the contention that the Aboriginal parties involved in these proceedings sent to the meeting ‘negotiators without authority to do more than argue or listen.’
Whilst we understand both the disappointment which Mr Gomez feels and his view that he was led astray by the course of the negotiations at the meeting, we have come to the conclusion that there is no evidence upon which we can reasonably found a finding that the Aboriginal respondents at the meeting failed to negotiate in other than good faith. It is agreed by all who attended that the meeting was ‘bursting with good will’, and there is nothing before us to suggest that such good will was other than genuine.
The order of the Court is that the application to set this determination aside is dismissed.
We will hear the parties as to the terms of the order. In the course of the proceedings, there was some discussion as to whether the terms of the determination of this Court accurately represented, in all respects, the terms of the agreement negotiated at the meeting. This is a matter which was left to be discussed between the parties. We will hear the parties on the question of what, if anything, we should now do with respect to that matter.
The parties have liberty to apply.
Solicitors for the Applicant: Piper Alderman
Counsel for the Applicant: R. Robertson
Solicitors for the First and Second Respondents: Lempriere Abbott McLeod
Counsel for the First and Second Respondents: A Collett
Solicitors for the Third Respondent: Johnston Withers
Counsel for the Third Respondent: A Collett
Solicitors for the Fourth Respondent: Aboriginal Legal Rights Movement
Counsel for the Fourth Respondent: A Collett
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/42.html