The National Native Title Tribunal has found that an explorer did not negotiate in good faith with registered native title claimants, sending the parties back to the negotiation table.
In a recent case[1], Member Cooley considered a future act determination application brought by Mr Richmond, the applicant for an exploration licence in Western Australia. The proposed exploration licence was partially overlapped by the Waturta registered native title claim.
The Tribunal had determined in 2021 that the grant of the exploration licence was not an act attracting the expedited procedure, meaning that Mr Richmond had to negotiate in good faith with the Waturta Applicant to obtain their agreement to the grant. The ‘Waturta Applicant’ refers to the six persons who together make up the claimant for the Waturta native title claim.
Under the ‘right to negotiate’ process in the Native Title Act 1993 (Cth), Mr Richmond was able to ask the National Native Title Tribunal to decide whether the exploration licence could be granted, because the parties had been negotiating for at least six months but had not reached agreement. However, the Tribunal does not have jurisdiction to make a future act determination if it is satisfied that either the grantee party or the government party did not negotiate in good faith.
History of the negotiations
Over a period of 3 years, Mr Richmond and the Waturta Applicant (through their respective lawyers) discussed a possible agreement, including exchanging drafts. Meanwhile, while purporting to consider a draft agreement, Mr Richmond arranged for one member of the Waturta Applicant, Mr Murphy, to undertake heritage surveys. Mr Richmond said this was because of delays in receiving responses from the Waturta Applicant (including one delay of 14 months).
The lawyers for the Waturta Applicant were subsequently advised of Mr Murphy’s report which said that there were no cultural heritage sites on the licence area and Mr Richmond considered there was therefore, “no point” entering into a heritage agreement. The Waturta Applicant explained that it comprised a number of persons acting jointly, and Mr Murphy had no authority to act on behalf of all of them. They said still wished to enter into an agreement.
Citing the recent Full Federal Court decision of Gomeroi[2], Member Cooley noted that the good faith obligation under the Native Title Act is principally concerned with a negotiating party’s intention, namely whether the party has negotiated with the aim of reaching agreement.
Conduct fell short of good faith negotiations
Member Cooley found that while claiming to negotiate in good faith about certain matters, including a heritage survey, Mr Richmond ‘went behind the back of the rightful negotiation party to commission a heritage survey’, which was not disclosed until after it had occurred. Mr Richmond was not considered to be negotiating with the aim of reaching agreement with the Waturta Applicant when he had already entered into an agreement with one of its members. He had appeared to overlook that the primary purpose of the negotiation was not cultural heritage, but that he was required to negotiate with the Waturta Applicant about the grant of the exploration licence.
Member Cooley found that Mr Richmond’s conduct did not meet the required standard of honesty and fair dealing:
Mr Richmond’s conduct in this matter is egregious on a number of levels. It not only undermines the authority of the Waturta Applicant and its appointed legal representative, it drives (or perhaps aggravates) discord between the members of the applicant and subverts the negotiations. This type of conduct is what is sometimes pejoratively called “picking a winner”, i.e. identifying an individual to give the answer you are looking for rather than dealing with the duly appointed representatives of a native title party.
Having found that the Tribunal has no jurisdiction to decide whether the grant of the exploration licence may occur, the parties must now return to the negotiation table.
Take aways
This case underlines the need for grantee parties to do more than pay lip service to the requirement under the Native Title Act to negotiate in good faith. It is not sufficient to ‘pick a winner’ in negotiations or to unilaterally decide that an agreement is no longer required. The Tribunal’s job is not to not to assess whether a particular offer is reasonable or not, but it is concerned with the conduct of the grantee party and whether there was a genuine attempt to reach agreement.
[1] William Robert Richmond v Kalman Michael Murphy & Ors obh the Waturta Native Title Claim Group and Another [2025] NNTTA 4
[2] Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26.