Summary
In this matter, the National Native Title Tribunal was satisfied that Norwest Sand & Gravel Pty Ltd did not negotiate in good faith in relation to a mining lease within the native title area held on trust by the Ngarluma Aboriginal Corporation (NAC). This was found despite a previous contractual agreement that stipulated NAC gives consent to future acts in the area by Norwest. Consequently, Norwest’s application for a mining lease, granted by the State of Western Australia (WA), was dismissed.
Background
The NAC Agreement
In 2008, the NAC, Norwest and others formed an ‘Ngarluma Exploration and Mining Agreement’. The contract stated NAC must not object to the grant of future tenements and must give all consents required under the NTA and other legislation. The agreement also stipulated that Norwest would pay royalties to the NAC, amongst other terms. The agreement ensured quick approvals for future tenements, without objection or need for further negotiation. However, the parties' relationship fractured in 2014/2015, and both parties variously breached the agreement. NAC had not been consenting to tenements since 2015, and Norwest had not been paying the specified royalties. Mediation occurred in 2016, and again in 2018 with no change in the relationship.
The Lease
The proposed lease area was about forty hectares in the West Pilbara, approximately four kilometres north-west of Wickham and twenty-five kilometres north-east of Karratha. Norwest intended to extract sand from a dune, estimating between 5,000 and 25,000 tonnes per annum. Norwest proposed that rehabilitation from soil removal and land clearing would be done subsequently. The renewable lease would initially be granted for twenty-one years.
WA gave notice (under s 29 of the Native Title Act 1993 (Cth) (NTA)) that it granted the mining lease to Norwest in July 2018. The NAC holds the native title for the Ngarluma People over the entire lease area, and a registered Aboriginal site covers about half of the area. Parties are required to negotiate in good faith for agreement by the NAC to grant the lease (s 31(1) of the NTA). No resolution was reached and in May 2020, Norwest applied to the Tribunal for a determination (s 38 of the NTA). Hearings were held in July and August 2020.
Submissions
Western Australia
WA did not submit any material in relation to Norwest negotiating in good faith, but did provide endorsements and conditions it proposed to impose on the lease.
Norwest
Norwest sought to rely on negotiations and entry into the 2008 agreement as evidence of its good faith for the grant of the lease. It maintained that the conduct of all parties is relevant to assess good faith. Further, Norwest contended the agreement secured NAC’s consent to the grant of the lease under the NTA.
The NAC
The NAC opposed that Norwest negotiated in good faith, and provided evidence to support this. It raised that Norwest only sent a legal team to the three, and never itself offered to meet, which the NAC characterised as bad faith. Also, it pointed out the failure of Norwest to follow any of the agreed outcomes of the mediations. Further, NAC submitted the negotiation relevant is that which was in relation to the present lease, and only Norwest’s conduct is relevant to the Tribunal’s power.
In respect to the 2008 agreement, NAC stated (1) Norwest had failed to address the breakdown of the relationship, (2) the NAC had consistently raised issues about the undelivered royalty payments, (3) consent to one tenement does not remove any obligation to negotiate in good faith with respect to a later tenement, (4) Norwest sought to assert the 2008 agreement conditions, yet refused to comply with its own obligations under that agreement, failed to comply with the mediation outcomes and consistently bore a closed mind in the lease negotiations.
Decision
As the agreement was neither a registered Indigenous Land Use Agreement (ILUA), nor an agreement under s 31(1)(b) NTA (which would require the inclusion of WA), the Tribunal determined that, under the NTA, the agreement cannot justify overriding the negotiations procedure. This largely upholds the NAC’s contentions. It was noted Norwest should have entered an ILUA, or otherwise could have enforced the agreement in court under contractual law.
The Tribunal held the only relevant period of good faith negotiations for the grant of the lease started following the s 29 NTA notice, rather than the negotiations prior to the agreement (especially as they occurred ten years prior). However, the agreement could be considered as context to parties entering good faith agreements. It was found there was no evidence Norwest had complied with its obligations from the mediations. Solely engaging a lawyer with limited knowledge to act in these mediations was seen to evince a distinct lack of meaningful engagement by Norwest. It was described as ‘ironic’ that Norwest sought to rely on the agreement to prove NAC’s consent, yet stated NAC’s inquiries regarding Norwest corresponding failures under the agreement were irrelevant. It was concluded Norwest had shown it did not accept a need to negotiate because it mistakenly believed it could rely on the agreement from 2008. This was unreasonable in light of the NTA and history of the matter (the fractured relationship and the fact that the agreement had been unused for the last five years).
The Tribunal found the matter is limited to whether Norwest negotiated in good faith, but did consider the conduct of WA and the NAC. The NAC was deemed to have shown to have taken account of the parties’ existing relationship and the long-standing issues, rather than beginning negotiations from scratch.
Norwest was found to have not negotiated in good faith as required by s 31(1)(b) NTA. The Tribunal was accordingly precluded from making a determination under s 38 NTA and Norwest’s s 35 NTA applications dismissed. It was noted that a further application may be made at a later time. WA was requested to grant the Mining Lease in view of the agreement and its context.