Aboriginal Law Bulletin
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The cases Mabo [No. 1][1] and Mabo [No. 2][2] recognised the equality of the Aboriginal right to land with non-Aboriginal interests after two hundred years of arbitrary, coercive and uncompensated dispossession. Eighteen months after the High Court decision in Mabo [No. 2], the Commonwealth enacted the Native Title Act 1993 (Cth) (`the NTA'). The NTA affirmed the dispossession up to 31 December 1993, but thereafter it was supposed to provide a regime of equality, having due regard to the unique character and significance of native title. The NTA, however, denies any veto or requirement of consent by native title holders to the grant of interests over native title land. Instead, the NTA provides that a Government party wishing to issue a mining tenement over native title land must `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 ... the doing of the act'.[3] The Preamble of the NTA stresses that it is `particularly important' for native title holders `to enjoy fully their rights and interests', and the central role of the Government duty to negotiate in good faith in ensuring such enjoyment. The Preamble stresses that:
`In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate'.[4]
In his Second Reading Speech on the Native Title Bill, the Prime Minister, Mr Keating, discussed the right to negotiate in the following terms:
`Where native title has been established, or where there is a registered claimant in the Federal or State Systems, the Bill provides a process of negotiation and if necessary, determination by the [National Native Title] Tribunal on whether a proposed grant should proceed ... this emphasis on Aboriginal people having a right to be asked about actions affecting their lands accords with their deeply felt attachment to land'.[5]The entire structure of the future acts regime of the NTA is directed to resolving disputes by agreement. Division 3, headed `Future acts and native title', begins with s21, which provides for agreements between a State and native title holders under which future acts may be authorised. The emphasis upon seeking resolution by agreement is further evident in the provisions for mediation by the National Native Title Tribunal (`the NNTT') (ss31(2) and 32 (5)(b)), mandatory mediation conferences (s72), and the use of conferences presided over by assessors to resolve any matter in proceedings before the Federal Court (s88)(2)).
The emphasis is in accord with all rational dispute settlement practices. Any dispute is best settled by the agreement of the parties, and the unique tenor of native title dictates that agreed settlements are much to be preferred. Other jurisdictions have primarily used agreements to resolve native title claims, and have often found more arbitrary mechanisms counter-productive. The significance of agreement is the understanding, commitment and preparedness to implement which parties bring to the resolution. Negotiation towards agreement requires parties to identify their interests and concerns, and determine which, and to what degree, they are prepared to compromise. It can readily accommodate uncertainties in the legal strength of the positions of parties. Moreover, it enables the development of an ad hoc settlement tailored to particular circumstances. Settlement agreements can provide terms which go a long way to meeting all parties' interests.
British Columbia is the place in the world which has problems most similar to those faced in Australia in providing for a settlement of native title. Indeed, in that jurisdiction, the legal problems are much greater in as much as questions of invalidity in relation to land acquisition go back to the establishment of the Province in 1871. In the landmark case Delgamuukw v British Columbia,[6] cited with approval by the High Court in Western Australia v The Commonwealth,[7] the Court of Appeal made clear its view that negotiation towards agreement was the preferred manner in which to effect settlement of land disputes. Mr Justice McFarlane declared:
`The parties have expressed willingness to negotiate their differences. I would encourage such consultation and reconciliation, a process which may provide the only real hope of an early and satisfactory agreement which not only gives effect to the aspirations of Aboriginal peoples, but recognises that there are many diverse cultures, communities and interests which must co-exist in Canada. A proper balancing of all these interest is a delicate and crucial matter'.[8]Mr Justice Lambert issued a lengthy judgment as to the legal rights of the Indian plaintiffs, and then declared:
`In the end, the legal rights of the Indian people will have to be accommodated within our total society by political compromises and accommodations based in the first instance on negotiation and agreement, and ultimately in accordance with the sovereign will of the community as a whole ...Canada and the United States of course afford a drastic contrast to the mere imposition of a duty to negotiate in good faith. In Canada, there is a constitutionally-entrenched requirement that Aboriginal people consent to the extinguishment of native title. And in neither the United States nor Canada can a State or Province issue valid grants over native title land. In both countries, the relationship between mineral development and Aboriginal rights to land has been much more harmonious and productive than in Australia.`.. I would prefer to see questions about the geographical extent, scope and content of Aboriginal title, Aboriginal rights of self-government and self-regulation, and Aboriginal sustenance right settled by negotiation, and political accommodation'.[9]
The Government of Western Australia continues to pay no heed to good sense or practice elsewhere. It seeks to ignore the duty to negotiate in good faith, and treat those provisions of the NTA related to it as mere window-dressing on the procedure for the granting of mining tenements. In particular it has:
Yet s31 appears clear. It declares that a Government party `must ... negotiate in good faith'. And authority affirms that interpretation. The extensive jurisprudence upon the question as to whether a requirement is mandatory was considered by the Chief Justice of Western Australia in Pan Continental Gold Mining v Minister for Mines.[11] The Chief Justice in that case held that lodging an application for the extension of a prospecting licence at the Department of Mines, instead of at the District Office of the Mining Registrar, constituted a total failure to satisfy a precondition to the exercise of the power to extend of the Minister. The jurisprudence requires regard to `the nature of the precondition', `its place in the legislative scheme', and `the extent of the failure to observe the requirement'.[12]
The `nature of the pre-condition' requiring negotiation in good faith by the Government party and its `place in the legislative scheme' make manifest its mandatory nature. The conclusion is reinforced by s32(5) of the NTA, which requires the NNTTto request the Government party and the grantee parties to negotiate in good faith. Statutory provision for such a request would be a nonsense and mock the NNTT if the parties did not have to undertake any action in response to the request.
The obligation to negotiate in good faith is a relatively recent addition to statutory law in Australia. The Industrial Relations Act 1988 (Cth) (which contains amendments in relation to enterprise bargaining provisions commencing from 30 March 1994) is the only statutory provision in relation to negotiating in good faith which has been judicially considered. The amendments introduced for the first time in industrial law in Australia the concept of negotiation in good faith. Under the provisions of s170QK, the Australian Industrial Relations Commission (`the Commission') may make orders for the purpose of ensuring that the parties negotiating an agreement do so in good faith. Section 170QK(3) directs the Commission to consider the conduct of the parties, in particular, their agreeing to meet at reasonable times, attending agreed meetings, complying with agreed procedures, capriciously adding or withdrawing items for negotiation, and significantly, disclosing relevant information.
In Public Sector, Professional Scientific, Research Technical, Communications, Aviation and Broadcasting Union v Australian Broadcasting Commission,[13] the Full Bench of the
Commission said:
`the determination of whether or not a negotiating party is "negotiating in good faith" may depend on the conduct of the party when considered as a whole. For example, if a party is only participating in negotiations in a formal sense, but not bargaining as such, then they may not be "negotiating in good faith". Negotiating in good faith would generally involve approaching negotiations with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid, pre-determined position and not demonstrating any preparedness to shift'.[14]Whilst the duty to negotiate in good faith in industrial disputes was only recently introduced in Australia, the obligation has been part of Canadian and United States industrial law for many decades. Indeed, the `codification' of some of the elements of negotiation in good faith by s170QK(3) draws on established principles from these two nations.
In a leading case, it was declared, in language much like that of the Preamble to the NTA, that the requirement to negotiate in good faith requires that the parties make a `sincere effort ... to reach common ground'.[15] The United States Supreme Court has declared that the `policy of the Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of achieving industrial peace'[16]
and
`Enforcement of the obligation to bargain collectively is crucial to the strategy scheme'.[17]
The decades of experience with the requirement in the USA has given rise to much learned commentary and consideration. Professor Cox, of Harvard Law School and subsequently Solicitor General of the United States, explained that the requirement does not require the parties to reach agreement, but imposes a process which gives reason and recognition of common interests a prominence which often leads to agreement:
`Initially, it may only be the fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to Government and public opinion, and moral principle; but in time these forces generate their own compulsions and negotiating a contract approaches the ideal of informed persuasion'.[18]Employers have long sought to flout the duty to negotiate in good faith, just as would the State of Western Australia flout the duty under the NTA.
Professor Cox futher said that courts have held it is not enough merely to go `through the motions of negotiating. Such conduct renders the requirement futile. One who merely went through the motions knowing that they were a sham could be said to lack good faith'.[19]
Moreover, he noted information relevant to the negotiations must be disclosed, and explained:
`Good faith bargaining necessarily requires that claims made by either bargainer should be honest claims. This is true about an asserted inability to pay an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy ... refusal to attempt to substantiate a claim of inability to pay increased wages may support a finding of failure to bargain in good faith'.[20]
The avenue provided for by s35 of the NTAis one of last resort, where no agreement has been entered into within the specified time. It arises only after a genuine attempt has been made by the parties to settle a matter by negotiation. Section 35 is not a means of effectively by-passing the negotiation process.
The integrity of the right to negotiate regime demands that the obligation to negotiate in good faith must be treated as a condition precedent to the Government party's ability to make an application under s35. The Government party's recourse to s35 cannot arise unless and until the Government party has negotiated in good faith, for the relevant period of time, with the native title party. The NNTT has no jurisdiction under s35 until the negotiating party seeking to apply has satisfied s31(1)(b). The application is not good in law.
The Government of WAmust genuinely and sincerely negotiate towards the conclusion of an agreement with the native title parties as to the grant of mining tenements. If the obligation can be ignored, both the NTA and the NNTT become merely instruments in Australia's sorry history of dispossession.
The High Court seems to accept this understanding. In the argument of the Waanyi appeal in February 1996,[21] McHugh J was reported as having sharply criticised arguments made by the State of Western Australia, along with other Governments, which would, if adopted, have deprived the Waanyi of their right to negotiate: `I find it difficult to control my anger that these points are put forward'.[22]
[2] Mabo v Queendland [No.2] [1992] HCA 23; (1992) 175 CLR 1.
[4] Emphases added.
[5] Parliamentary Debates (Hansard), House of Representatives, 16 November 1993, page 2880.
[7] [1995] HCA 47; (1995) 183 CLR 373.
[8] At 547 (emphases added).
[9] At 746-747; also Hutcheon JA at 764.
[10] Novak, Manager of Native Title Unit, Government of WA to Aboriginal Legal Service of WA, 18 December 1995. See also `Study of Impact of Commonwealth's Native Title Act on the Western Australian Mining Industry', Consultancy Report to Chamber of Mines and Energy of WA by the Allen Group, 18 October 1995, in which a mining company says of the WA Government' ... they keep saying don't negotiate' (page 21).
[12] At 174-176, relying on Victoria v Commonweealth [1975] HCA 39; (1975) 134 CLR 81.
[13] Australian Independent Law Review 419 (No. 372).
[14] At 421.
[15] NLRB v Reed and Prince Manufacturing 188 F2d 855 at 874.
[16] NLRB v Insurance Agents International [1960] USSC 23; 361 US 477 (1961) at 488.
[17] NLRB v American National Insurance Company [1952] USSC 67; 343 US 395 (1952) at 402.
[18] `Duty to Bargain in Good Faith', A Cox, 71 Harvard Law Review 1401, page 1409.
[19] Page 1413. See also NLRN v Montgomery Ward & Co 133 F2d 676 (1953).
[20] NLRB v Truitt Manufacturing [1956] USSC 55; 351 US 149 (1956) at 152-153.
[21] See note in `Recent Happenings'.
[22] The Australian, 9 February 1996, page 1; The Weekend Australian, 10/11 February 1996, page 2.
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