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Editors --- "Brownley v State of Western Australia - Case Summary" [2001] AUIndigLawRpr 27; (2001) 6(3) Australian Indigenous Law Reporter 17

Court and Tribunal Decisions - Australia

Brownley v State of Western Australia

Federal Court of Australia (Lee J)

19 August 1999

[1999] FCA 1139

Native title — right to negotiate — negotiations in good faith — objective or subjective element — approach of Tribunal — examination of content of government offers — refusal to negotiate on compensation — delay — whether good faith negotiations occurred

Facts:

The applicants were claimants for native title under a native title claim registered with the National Native Title Tribunal. The respondent gave notices under s 29 of the Native Title Act 1993 (Cth) of its intention to grant mining leases to Anaconda Nickel Ltd (Anaconda). On an application by Anaconda to the Native Title Tribunal for the grant of the mining leases, the Tribunal determined the State had acted in good faith and that it had jurisdiction to conduct such an inquiry. The applicants claimed that the Tribunal did not have jurisdiction to determine the question because the Government party had not negotiated in good faith as required by s 31 of the Native Title Act. The applicants applied for review of the Tribunal’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Held, dismissing the application:

1. Whether a government has acted in good faith in negotiations will be a matter of the inferences to be drawn from the totality of the material. To determine if the obligation in s 31(1)(b) has been complied with, honesty and good faith in the conduct of a government will be judged objectively, not by whether a government believes it has so acted: International Alpaca Management Pty Ltd v Ensor (1995) 133 ALR 561; Royal Brunei Airlines SDN BHD v Philip Tan Kok Ming [1995] UKPC 4; [1995] 2 AC 378 referred to at para [27] of the judgment.

2. Despite some misunderstanding by the Tribunal that it was not ‘permitted’ to look at the reasonableness of any proposal advanced by the State there had been no error of law by the Tribunal in the performance of its statutory task. Although the Tribunal said that it was not for it to assess the reasonableness of any offer made by the State, the context in which the statement occurred demonstrated that the Tribunal had not failed to look at the conduct of the State as a whole: Strickland v Minister for Lands for Western Australia [1998] FCA 868; (1998) 85 FCR 303; 3 AILR 532; Walley v The State of Western Australia [1999] FCA 3 considered, at paras [35], [36].

3. There was evidence to support the Tribunal’s finding that the State had not limited the conduct of the negotiations to each tenement in isolation. A public body entrusted with a decision on the existence or non-existence of a fact does not commit an error of law merely because the conclusion is just conceivable on the material provided to that body: Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 referred to, at para [46].

4. If the State had adopted a position in negotiations that it would not countenance the possibility of payment of compensation by the grantee party to native title parties, or had refused to participate in negotiations at all, it may be said that the State would not be negotiating in good faith. The Tribunal did not err in its finding of good faith negotiation if it accepted that the State would not refuse to implement an agreement between the applicants and the grantee party on payments of compensation to be made by the grantee party. Referred to at paras [54], [57].

5. Once it was accepted that the Tribunal correctly understood and applied the law the applicants failed in their task of showing that the Tribunal failed to make the only decision permitted on the material before it. Referred to at para [69].

6. The duty to negotiate in good faith imposed by s 31 incorporates the moral duty of the government party to properly engage in a process of negotiation with a native title claimant. That process is directed to obtaining an accord between the government and native title claimants, in a manner which respects the connections with particular land of indigenous people, prior to the exercise of a power held by the government. The intention of Parliament is that a government party engage in negotiation with a native title party with an open mind, willingness to listen and willingness to compromise. The Tribunal had not misdirected itself in that regard: Delgamuukw v British Columbia [1997] 3 SCR 1010 referred to at paras [22], [24] and [26].