Siopis J
This case concerned the meaning of the obligation to negotiate in good faith with regard to the ‘future acts’ regime under the Native Title Act 1993 (Cth) (NTA). The Court held that Fortescue Metals Group Ltd (FMG) did not breach its obligation to negotiate in good faith when it employed as a solicitor in the negotiations a person who had previously worked at the Native Title Representative body (NTRB) that was representing the native title claimants.
Background
FMG had applied for a number of mining leases within the claim area of the Njamal People, and the state duly gave notice under the NTA of its intention to grant those licences, which would constitute future acts. Negotiations between FMG and the native title party did not reach any agreement and, after the necessary time period had elapsed, FMG applied to the National Native Title Tribunal for a determination under s 38 of the NTA that the future act could be done (Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 66)
Submissions
The native title party argued that FMG had not complied with its obligation to negotiate in good faith because they had used in their negotiations a lawyer called Mr Sukhpal Singh, who had previously worked at Yamatji Marlpa Aboriginal Corporation (YMAC), the NTRB representing the native title party. Mr Singh had worked at YMAC between 2005 and 2008, assisting a number of different native title claim groups in the Pilbara region. The question of whether and to what extent Mr Singh had acted for the Njamal People was a matter of disagreement between FMG and YMAC. YMAC informed FMG that it considered Mr Singh was unable to represent FMG in negotiations by reason of a conflict of interest.
The Tribunal considered two slightly different arguments put by the native title party. The first argument was that FMG had acted unreasonably in negotiations because Mr Singh was disqualified on common law grounds from acting for FMG in the negotiations. The second argument was that FMG had acted unreasonably because it had knowledge that Mr Singh was disqualified from acting and that he possessed confidential information about the native title claim group.
FMG submitted in response that there was no conflict. At a meeting between the native title party and FMG, the claim group expressed their dissatisfaction with Mr Singh’s presence but the meeting continued.
Decision of the Tribunal
The Tribunal considered evidence about the extent of Mr Singh’s involvement in YMAC’s work with the Njamal People. It concluded that this evidence did not establish that Mr Singh had been sufficiently involved with the Njamal People to be under a solicitor’s duty of loyalty to them. The evidence also did not show that he had acquired confidential information relating to the Njamal People while working at YMAC. That finding was despite the fact that Mr Singh had been copied into emails containing the Njamal people’s privileged and confidential information. The Tribunal was not satisfied that he had read that information and accepted that he did not recall the emails. The Tribunal also rejected an argument that the duties of solicitors are higher in respect of native title claim groups than under the general law.
Because of its factual findings, the Tribunal did not find it necessary to answer the question of whether FMG would have breached its obligation to negotiate in good faith if Mr Singh had been found to be in breach of his solicitor’s duties. It also did not directly address the question about whether FMG’s knowledge of such a breach would have been necessary to render its behaviour unreasonable.
Decision of the Federal Court
On appeal from the Tribunal to the Federal Court, the native title party raised several grounds on which it said the Tribunal had erred. The Court, however, did not consider that these grounds raised questions of law as required for an appeal from the Tribunal under s 169 of the NTA. Accordingly, the Court dismissed the appeal.
The Court went on to make some additional comments about the Tribunal’s decision. The Court said that the Tribunal need not have asked whether Mr Singh was in breach of his duties of loyalty and confidentiality to the Njamal people, because the question of whether FMG had negotiated in good faith was to be answered by reference to FMG’s state of mind and its actions. In this case, FMG had responded to the native title party’s complaint about Mr Singh by seeking legal advice from an Independent barrister. Further, YMAC had not sought its own independent advice, nor taken legal action in relation to Mr Singh, nor complained to the relevant legal professional body. Accordingly, the Court considered that FMG had negotiated in good faith regardless of whether or not Mr Singh, as a matter of law, was in breach of his duties.