Bartlett, Richard --- "The State's Duty to Negotiate in Good Faith: Wally v WA & WMC & NNTT; Taylor v WA & Ors; Collard v WA & Ors; Smith v WA & Ors" [1996] AboriginalLawB 48; (1996) 3(82) Aboriginal Law Bulletin 14

• The State’s Duty To Negotiate In Good Faith: Wally V Wa &Amp; Wmc &Amp; Nntt; Taylor V Wa &Amp; Ors; Collard V Wa &Amp; Ors; Smith V Wa &Amp; Ors

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The State’s Duty to Negotiate in Good Faith: Wally v WA & WMC & NNTT; Taylor v WA & Ors; Collard v WA & Ors; Smith v WA & Ors

The State’s Duty to Negotiate in Good Faith: Wally v WA & WMC & NNTT; Taylor v WA & Ors; Collard v WA & Ors; Smith v WA & Ors

Federal Court, Carr J

Unreported

20 June 1996

Casenote by Richard Bartlett

The State of Western Australia has generally ignored the duty to negotiate in good faith imposed upon it with respect to the granting of mining tenements (s31(1)(b) of the Native Title Act 1993 (Cth) ('the NTA'). For comment, see 'The duty to negotiate in good faith' by Richard Bartlett and Anne Sheehan, Vol 3, 78 Aboriginal Law Bulletin 4). It has sought merely to give notice under s29 of its intention to grant a mining tenement, wait four or six months as stipulated in s35, and then apply for one of the determinations under s38 of the NTA from the National Native Title Tribunal ('the NNTT) that the grant may be made, overriding native title.

The State sought to follow that pattern in four cases where the claimants, advised by the Aboriginal Legal Service of Western Australia, lodged a preliminary objection before the NNTT that because the Government party had not negotiated in good faith, its applications should be dismissed. The duty to negotiate in good faith is, of course, the core of the NTA, and critical to the consensual settlement of native title disputes in Australia. The Hon CJ Sumner for the NNTT rejected the objection because there was 'no specific power' expressed in the NTA to dismiss the State's application (see 'Negotiating in good faith' by Richard Bartlett, Vol 3, 79 Aboriginal Law Bulletin 18). The claimants sought judicial review in the Federal Court.

In the hearings before Carr J of the Federal Court, it was common ground that the duty of the State to negotiate in good faith is mandatory, in accordance with the language of s31(1)(b). It was also conceded by the respondents that it was proper for the NNTT to determine if any conditions necessary to the exercise of its jurisdiction had been met However, the respondent parties, the State and the applicants for mining leases, argued that the requirement to negotiate is not a precondition to the making of an application under s35. They emphasised:

• The importance of the time limits set down in the NTA;
• The difficulty of the NNTT endeavouring to ascertain if a Government party has negotiated in good faith;
• The availability of curial remedies to enforce the duty to negotiate in good faith;
• That negotiation involves other parties as well as the Government-it is not entirely within a Government's power, and depends on a submission by a native title party under s31 (1)(b).

Carr J rejected the arguments of the respondents and remitted the matter back to the NNTT, in order that it might determine if the State had negotiated in good faith: 'If the Government party has not so complied then the application is invalid and should be dismissed' (page 30). The NNTT had erred in law in deciding that it did not have power to dismiss such an application.

The duty to negotiate in good faith was declared to be 'clearly important and central to the permissible act process'. Reliance was placed on the High Court decision in North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v Queensland & CRA((1996) 135 ALR 225), and the 'clear mandatory language employed by Parliament' (page 14). The duty to negotiate in good faith was accordingly a condition precedent

'if the Government party has not complied with its obligation under s31(1)(b) ... then none of the parties may move to the next stage of making an application under s35 for a determination' (page 30).

Carr J explained that the condition precedent was expressed in s31. Parliament 'made its will known on the matter some four sections earlier' than s35. 'It would have been unnecessarily repetitious to have restated it in s35. Furthermore it is almost unthinkable that the Government party might not obey such a mandatory command' (pages 29-30).

The learned judge also gave some insight into what negotiation in good faith might require:

.. 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' (pages 28-29).

The decision requires, as the NTA had made manifest, that the State of Western Australia make a sincere effort to seek to reach agreement with native title and grantee parties before seeking an order from the NNTT overriding native title. Its general failure to do so up till now, thereby seeking to discount native title, suggests that many of the tenements it has sought to grant will now be delayed for further months until it fulfils its statutory obligation.

The workability of the NTA is currently under examination. The decision in Wally v WA and WMC and NNTT emphasises that the problems the NTA presents for the State of Western Australia are largely of the State's own making, and reflect its ongoing determination to deny, and as far as possible discount, native title. The mining industry has already significantly changed course in its opposition to native title but the State of Western Australia has yet to do so. The State prefers to engage in a general refusal to negotiate with respect to the granting of mining tenements, thus causing difficulties for the mining industry, rather than sincerely striving for consensual settlement of native title questions.