On 14 August 2019, the Western Australian government gave notice under section 29 of the Native Title Act 1993 (Cth) (NTA) that it intended to do the 'future act' of granting three mining leases over three areas of land located north and west of Marble Bar: one to Wodgina Lithium Pty Ltd (Wodgina Lithium) and two to Atlas Iron Pty Ltd (Atlas Iron). Atlas Iron represents Wodgina in this case.
The Nyamal Aboriginal Corporation (NAC) managed the native title over the area of the proposed leases. As the native title party, NAC had a right under sections 30(1)(a) and 31 of the NTA to negotiate with respect to the proposed leases.
The Western Australian government, Wodgina, and Atlas were obliged to negotiate in good faith with NAC with the goal of reaching an agreement on the 'future act' under section 31(1)(b) of the NTA.
Atlas and Wodgina applied to the Tribunal under sections 35 and 38 of the NTA to determine whether the leases could be granted as they had been negotiating for over a year and had not been able to reach an agreement.
In opposing this application, NAC argued that Atlas and Wodgina had not negotiated in good faith. If Atlas Iron were found not to have negotiated in good faith then the Tribunal could not make a determination about the leases according to section 36(2) of the NTA.
The 2008 Agreement
Atlas Iron and the Njamal Native Title Applicants for and on behalf of the Njamal Native Title Claimants (Njamal) were party to an existing agreement dated 6 December 2008 (Existing Agreement). There was also a partially executed deed seeking to assign the Existing Agreement to NAC.
The parties sought legal advice on whether the Existing Agreement applied to the leases. NAC interpreted the advice to mean it did not apply and Atlas interpreted the advice as unclear and not answering the question .
NAC argued that in relation to the negotiations Atlas adopted a 'rigid, non-negotiable position', insisting that the 2008 Agreement meant NAC should agree to the leases .
According to the Tribunal, this disagreement did not amount to a lack of good faith .
The Tribunal determined that Atlas had acted in good faith during the negotiations for the leases. This was due to the following:
- Atlas did not avoid negotiations but communicated to NAC their view that the leases were covered by the Existing Agreement and sought NAC's views on this matter .
- Atlas left it open to NAC to disagree about the applicability of the Existing Agreement .
- Atlas relied on the Exiting Agreement as a reference point for signing the s 31 agreements and this did not mean they disregarded the good faith negotiation scheme of the NTA .
- Atlas made genuine attempts to resolve the disagreement about the Existing Agreement. Eg. Requesting and attending Tribunal mediation, working with NAC representatives to draft and meet the cost of a joint brief to counsel to try and resolve the matter .
- Atlas attempted to negotiate terms that would apply to the leases, using the Existing Agreement as a basis. They were also willing to fund some of NAC's costs .
The Tribunal found that Atlas's behaviour was not 'unreasonable, unexplained or unnecessary'. Rather, it found the negotiations had been conducted in good faith and that Atlas acted reasonably and with honest intentions .