What you need to know
- In November 2020, the National Native Title Tribunal was required to consider two "negotiation in good faith" challenges by native title parties in the context of a right to negotiate process for the grant of mining leases in WA. In both cases, the grantee party and native title parties had entered into a prior native title agreement that purported to govern the process for future grants.
- One of those challenges was successful (Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC & Another [2020] NNTTA 68) and the other was not (Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation [2020] NNTTA 75).
- The determining factor was the extent to which the mining company sought to rely on the earlier agreement. The agreement provides context, but good faith requires an open mind.
What you need to do
- Remember that every right to negotiate process requires the parties to negotiate in good faith with a view to reaching an agreement about the relevant grant, regardless of the existence of a prior agreement about future grants.
- If relying on a prior agreement, ensure this is not to the exclusion of meaningful engagement with the native title parties after the section 29 notice has been published.
- Be aware that the Senate's Interim Report on the Juukan Gorge incident was critical of the right to negotiate where the overwhelming number of arbitral decisions favour the mining company. Legislative reform is on the agenda.
We have been following "negotiation in good faith" challenges in our Native Title Year in Review for many years.
The National Native Title Tribunal had not needed to determine a good faith challenge for approximately two years, when in November 2020 it was required to consider two challenges by native title parties in relation to WA projects.
Both cases arose in the context of a right to negotiate process for the grant of a mining lease, where the grantee party and native title parties had a long history and a prior agreement that purported to govern the process for future grants.
Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC– negotiation in good faith challenge successful
In Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC & Another [2020] NNTTA 68 (Norwest) the National Native Title Tribunal found that Norwest had not negotiated in good faith.
Norwest relied on the prior agreement, to the exclusion of meaningful engagement in the negotiations of the mining lease. The Tribunal concluded that "Norwest came to the negotiations …under the mistaken belief that it was not required to negotiate" because of the prior agreement.
The Tribunal emphasised that, while the prior agreement is not irrelevant, and should be taken into account as part of the context of the negotiations, the relevant negotiations for the grant of the mining lease commence on the date of the section 29 notice. The grantee party's conduct from the date of that notice is what is primarily under consideration by the Tribunal.
In concluding that Norwest did not act in good faith, the Tribunal considered:
- its continued reliance on the prior agreement, without acknowledging the history of disputes and the native title party's concerns about the agreement;
- failure to personally attend or meaningfully engage in the mediations;
- selectively engaging with the outcomes of mediation and only to progress the issues of concern to Norwest; and
- evidencing little intention to resolve the issues raised by the native title party.
Atlas Iron Pty Ltd v Nyamal Aboriginal Corporation– grantee party had negotiated in good faith
In contrast, the Tribunal in Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation [2020] NNTTA 75 (Atlas Iron), found that the grantee party had acted in good faith.While the grantee party had relied on a prior agreement, and expressed its view to the native title party that the grant of the mining leases were covered by the terms of the agreement, the Tribunal concluded that this was not in an attempt to disregard the good faith negotiation scheme in the Native Title Act.
Rather, the grantee party was relying on the prior agreement as a reference point for signing a new section 31 agreement which is required to ensure compliance with the Native Title Act processes. The grantee party left it open to the native title party to communicate a different view on the prior agreement, and continued to engage with them through mediation, provision of material requested, joint engagement of Counsel for advice and payment of costs.
Considering the conduct of the parties in this context, the Tribunal concluded that the grantee party's conduct was not unreasonable or unnecessary, but rather reflected a subjective honesty of intention.
Key Insights
It is not unusual at the early stage of a resources project for a company to reach agreement with the relevant native title party about how native title and Indigenous cultural heritage issues should be managed for the life of the project, including agreement about future grants in the project area.
These decisions provide a timely reminder that every right to negotiate process requires the parties to negotiate in good faith with a view to reaching an agreement about the relevant grant, regardless of the existence of a prior agreement about future grants. Reliance on a prior agreement must not be to the exclusion of meaningful engagement with the native title party after the section 29 notice has been published.
This is even more relevant in the context of the Senate's Interim Report on the Juukan Gorge Caves incident. The Interim Report highlighted the inequitable negotiating position between native title parties and grantee parties in the right to negotiate process and flagged the possibility of further reforms to the Native Title Act.
Authors: Leonie Flynn, Expertise Counsel and Anna Seddon, Lawyer.
