Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC & Another [2020] NNTTA 68

Between: 

Ngarluma Aboriginal Corporation RNTBC (Respondent)

and 

Norwest Sand & Gravel Pty Ltd (Applicant)

and 

State of Western Australia (Government Party)

Tribunal member: Nerida Cooley 

Significance

This case considered what effect an existing regional agreement had in relation to a later proposed Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth) (NTA). In particular, whether the obligation to negotiate in good faith under s 31 of the NTA did not apply given the prior existing regional agreement. 

The Tribunal found that the existing agreement was only relevant in that it provided context for the existing relationship between the parties and the background against which negotiations took place.

Background 

In 2008, Norwest Sand & Gravel Pty Ltd (Norwest) and Ngarluma Aboriginal Corporation (NAC) became parties to a regional agreement, known as the "Ngarluma Exploration and Mining Agreement" (the 2008 Agreement). Both Norwest and the NAC had, over time, breached this agreement. 

On 20 July 2018, the Western Australian government gave notice that it was considering granting a mining lease to Norwest over land located in the Western Pilbara, approximately 4 kilometres north-west of Wickham and 25 kilometres north-east of Karratha. 

The NAC RNTBC held native title over the area of the proposed lease and was notified of the proposed mining lease in accordance with s 29 of the NTA. 

Norwest and the NAC were unable to reach an agreement for the lease. So, Norwest applied to the National Native Title Tribunal (the Tribunal) to determine whether the lease could be granted.  

Jurisdiction of the Tribunal

Under ss 31(1)(b) and 36(2) of the NTA, parties to an agreement must negotiate in good faith, and the Tribunal cannot determine that an agreement is valid unless satisfied that negotiations were conducted in good faith.  

The 2008 Agreement

The 2008 Agreement had been made with the intention of fast-tracking future approvals of sand extraction operations in the area and was itself not an ILUA. 

Clause 7.2 

Clause 7.2 of the 2008 Agreement provided that 'NAC will not object to the grant of future tenements and will give such consents as are reasonably required.' 

Future tenements were defined in the 2008 Agreement as 'tenements of any type applied for and granted after the signing date of this Contract' [42]. 

Norwest argued that the negotiations of and entry into the 2008 Agreement meant that it was not necessary to enter into new negotiations with NAC for "future tenements". 

Decision 

The 2008 Agreement was not enough to secure NAC's consent to the grant of the proposed lease under the NTA because it was not a registered ILUA under the NTA [125].  

The Tribunal did acknowledge, however, that it would be open to Norwest to pursue enforcement of the 2008 Agreement in court as a private agreement [126]. 

Approach to existing agreements

The Tribunal considered that the correct approach to the 2008 Agreement was to take it into account simply as part of the context for the good faith negotiations for the proposed lease [135]. It did not negate Norwest's obligation under the NTA to negotiate an ILUA in good faith. 

Good faith

The relevant period for when the negotiations of good faith began was after NAC received the s 29 notice, and not as an incident of the 2008 Agreement. 

Evidence that Norwest had not acted in good faith included:

• Norwest's continued reliance on the 2008 Agreement, ignoring the history of the disputes and NAC's concerns about the agreement [171], [176];
• failure to meaningfully engage in the mediations [172];
• only engaging with the mediations to progress the issues of concern to Norwest [173]; and
• demonstrating little intention to resolve the issues raised by NAC [173].

Conclusion

The Tribunal found that Norwest came to the negotiations for the proposed lease with the belief that agreement had been reached in 2008 for all future tenements and that no further negotiations were needed [161]. This attitude was a failure to enter meaningfully into negotiations with NAC. The Tribunal found that Norwest had not acted in good faith [178].

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