Bartlett, Richard --- "Negotiating in Good Faith: Minister for Mines (WA) and Taylor on behalf of the Njamal people and Mullan" [1996] AboriginalLawB 21; (1996) 3(80) Aboriginal Law Bulletin 18

• Negotiating In Good Faith: Minister For Mines (Wa) And Taylor On Behalf Of The Njamal People And Mullan

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Negotiating in Good Faith:

Minister for Mines (WA) and Taylor on behalf of the Njamal people and Mullan

Minister for Mines (WA) and Taylor on behalf of the Njamal people and Mullan

National Native Title Tribunal

Hon CJ Sumner

Unreported, 8 March 1996

Application WF 96/4

Casenote by Richard Bartlett

In this case the State of Western Australia applied to the National Native Title Tribunal ('the NNTT') pursuant to s35 of the Native Title Act 1993 (Cth) ('the NTA') for a determination to allow the grant of a mining lease over the land in question. The NNTT is empowered to determine that a mining lease may issue and that native title be overridden under s38 of the NTA. Such an application may be made by a 'negotiation party', if there is no agreement with a native title party, within 6 months of the giving of notice of intention to do the act. Section 31 declares that upon giving such notice the 'Government party must ... negotiate in good faith with the native title parties' (emphasis added).

In the instant case the native title party lodged a preliminary objection that because the Government party had not negotiated in good faith, the application should be dismissed. It was argued that negotiation in good faith is a condition precedent to such an application. Hon CJ Summer for the NNTT rejected the objection.

He explained that the NNTT needs to be 'careful about reading into' the Native Title Act 'powers which are not clearly spelled out' (page 5). He refused to enforce the duty to negotiate in good faith because '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' (page 5). He suggested that the native title party should seek judicial review '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' (page 9).

If regard is had to the object of the NTA, it is suggested that upon judicial review taking place it will be determined that an application, where no negotiation in good faith has taken place, is a nullity and should not be proceeded upon by the NNTT. The NNTT could, of course, have reached such a conclusion. No express provision of a statute is required to dictate such a result where an application is not good in law (Pan Continental Gold Mining v Minister for Mines (1989) WAR 169).

Hon Sumner made his ruling despite a conclusion that 'section 31 creates a legal obligation on the Government party to negotiate in good faith'. He also accepted 'that in the majority of cases, there have either been no negotiations or they have just started' and that 'the overwhelming majority of grantee and native title parties have expressed a willingness to negotiate and have expressed the likelihood of settlement as moderate'. In conclusion he suggested that 'more could be done , particularly by the Government, 'to facilitate effective negotiation' (pages 10-11).

The duty to negotiate in good faith is the only provision in the NTA that pays any regard to the unique character and significance of native title, which genuine equality would seem to demand (see 'The Duty to Negotiate in Good Faith' by Richard Bartlett and Anne Sheehan, Vol 3, 78 Aboriginal Law Bulletin 4 [1996] ALB 2; 3(78)pg2). The NNTT appear not to understand its significance. The decision is another instance in a pattern of adopting 'conservative' interpretations of the Native Title Act that favour development and perceived certainty over native title (see 'Undermining the NNTT: Waanyi No. 1 and No. 2' by Richard Bartlett, Vol 3, 73 Aboriginal Law Bulletin 14 [1995] ALB 28; 3(73)pg14).