FEDERAL COURT OF AUSTRALIA

Charles, on behalf of Mount Jowlaenga Polygon # 2 v Sheffield Resources Limited [2017] FCAFC 218

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 of the Court’s orders dated 21 September 2017 be set aside.

3.    The decision dated 22 May 2017 of the National Native Title Tribunal be set aside.

4.    The matter be remitted to the National Native Title Tribunal for a re-hearing according to law, limited to the issue of whether or not s 36(2) of the Native Title Act 1993 (Cth) applies.

5.    The implementation and operation of the decision dated 14 June 2017 of the National Native Title Tribunal be stayed until further order.

6.    The first respondent notify the Court in writing of the terms of the decision of the National Native Title Tribunal arising from order 4 above within 72 hours of that decision being published.

7.    The Court will determine on the papers and without a further oral hearing the validity of the decision dated 14 June 2017 of the National Native Title Tribunal in the light of the decision on the remitter referred to in paragraph 4 above.

8.    The parties have liberty to apply on the giving of 48 hours’ notice.

9.    The first and second respondents pay the appellant’s costs of the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH AND GRIFFITHS JJ:

1    The central issue in the appeal is whether the primary judge erred in concluding that, on the proper construction of relevant provisions of the Native Title Act 1993 (Cth) (the NT Act), the obligation to negotiate in good faith pursuant to s 31(1)(b) did not continue to apply to negotiations which took place after a negotiation party had made an application under s 35 for the arbitral body to make a determination under s 38 of the NT Act. The resolution of the issue of construction is not straightforward. For the reasons that follow, however, we respectfully disagree with the primary judge’s view. It should be noted that there is a degree of urgency about the appeal. The hearing was expedited following an application by Sheffield Resources Limited (Sheffield).

2    The issues in the appeal are best understood against the background of the relevant statutory provisions, the background facts and a summary of the primary judge’s reasons for judgment.

Relevant provisions of the NT Act

3    Subdivision P of Div 3 of Pt 2 of the NT Act contains provisions relating to the “right to negotiate”. The importance of these provisions for native title parties has long been recognised, as has the significance of the correlative obligation on other persons to negotiate in good faith (see North Ganalanja Aboriginal Corporation and Anor for and on behalf of the Waanyi People v The State of Queensland and Ors [1996] HCA 2; 185 CLR 595 (North Ganalanja) at 616 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).

4    Before summarising the relevant provisions in Subdiv P and in other parts of the NT Act, as in force at the relevant time (8 August 2014), it is desirable to note the “overview” of Subdiv P as set out in s 25. It is explained there that Subdiv P applies to certain “future acts” (as defined in s 233) done by the Commonwealth, a State or a Territory, which includes certain conferrals of mining rights. Before the future act is done, the parties must negotiate with a view to reaching an agreement about the future act (s 25(2)). If they do not reach agreement, either an arbitral body or a Minister can make a determination about the act instead. If the procedures of Subdiv P are not complied with, the future act will be invalid to the extent that it affects native title (s 25(4)).

5    Against that broad overview, the relevant particular provisions are as follows. Section 26 describes when Subdiv P applies. It applies when an act is done by the Commonwealth, a State or a Territory (the Government party) and the act involves, relevantly, the creation of a right to mine, whether by the grant of a mining lease or otherwise. (There are some exceptions but they are not relevant to the appeal). By s 27, the National Native Title Tribunal (NNTT) is an arbitral body and it is the relevant arbitral body here.

6    The effect of s 28 is that, subject to the NT Act, an act to which Subdiv P applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of several paragraphs are satisfied. One of those paragraphs ((f)) is “an agreement of the kind mentioned in paragraph 31(1)(b) is made”. Another paragraph ((g)) is “a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with”.

7    By s 29, before the future act is done, the Government party must give notice of the act in accordance with that provision. Notice must be given to various persons, including any registered native title claimant in relation to any land or waters that will be affected by the act. Any such claimant is included in the definition of a “native title party” in s 29(2). Notice must also be given to the public and, if the doing of the act has been sought by a person (such as the grant of a lease for which the person has applied), notice must also be given to such a person, who is defined as “a grantee party” (see s 29(2)(c)).

8    The NT Act also contains provisions relating to what is described as “the expedited procedure” (see s 32). Those provisions have no direct application to the issues which arise on the appeal.

9    Persons other than native title claimants can become a “native title party” if they fall within s 30, but that matter need not be taken any further for the purposes of the appeal.

10    By virtue of s 30A, each of the following persons is a “negotiation party”:

(1)    the Government party;

(2)    any native title party; and

(3)    any grantee party.

11    Section 31 is a key provision for the purpose of the appeal and should be set out in full:

31    Normal negotiation procedure

(1)    Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:

(a)    the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

(b)    the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

(i)    the doing of the act; or

(ii)    the doing of the act subject to conditions to be complied with by any of the parties.

Note:    The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).

    Negotiation in good faith

(2)    If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

    Arbitral body to assist in negotiations

(3)    If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.

    Information obtained in providing assistance not to be used or disclosed in other contexts

(4)    If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:

(a)    providing that assistance; or

(b)    establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);

without the prior consent of the person who provided the NNTT with the information.

12    A non-exhaustive list of matters which may be the subject of negotiations is set out in s 33. The list includes such matters as the amount of profits made, any income derived or any things produced by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

13    Sections 34 and 35 are important relevant provisions for the appeal. Their full terms are as follows:

34    No agreement if determination

An agreement of the kind mentioned in paragraph 31(1)(b) has no effect in relation to the act for the purposes of this Subdivision if it is made after the making of a determination under section 36A or 38.

35    Application for arbitral body determination

(1)    Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:

(a)    at least 6 months have passed since the notification day (see subsection 29(4)); and

(b)    no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.

Withdrawal of application

(2)    At any time before a determination in relation to the act is made under section 36A or 38, the negotiation party may withdraw the application by giving notice to the arbitral body.

Negotiations for an agreement

(3)    Even though the application has been made, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b) before a determination in relation to the act is made under section 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.

14    Section 36 is another important provision and should be set out in full, noting in particular s 36(2):

36    Arbitral body determination to be made as soon as practicable

(1)    Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable.

Determination not to be made where failure to negotiate in good faith

(2)    If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application.

Note:    It would be possible for a further application to be made under section 35.

Report to Commonwealth Minister

(3)    If the arbitral body is the NNTT and it does not make the determination within the period of 6 months starting when the application is made, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so and include in that advice an estimate of when a determination is likely to be made.

Relevant Minister may give arbitral body notice as to urgency

(4)    At any time later than 4 months after a negotiation party has made an application under section 35 that has not been withdrawn, and before either:

(a)    the negotiation parties have made an agreement of the kind mentioned in paragraph 31(1)(b); or

(b)    the arbitral body has made a determination under section 38;

the relevant Minister may give a written notice to the arbitral body requesting the arbitral body to make such a determination within the period specified in the notice. The period must end at a time later than 6 months after the application under section 35 was made.

15    Under s 36A, the relevant Minister may make a determination if there has been a delay in the arbitral body making a determination.

16    Section 38 describes the kinds of determination which an arbitral body can make. Sections 38(1) and 38(1A) provide as follows:

38    Kinds of arbitral body determinations

(1)    Except where section 37 applies, the arbitral body must make one of the following determinations:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)    a determination that the act may be done subject to conditions to be complied with by any of the parties.

    Determinations may cover other matters

(1A)    A determination may, with the agreement of the negotiation parties, provide that a particular matter that:

(a)      is not reasonably capable of being determined when the determination is made; and

(b)      is not directly relevant to the doing of the act;

is to be the subject of further negotiations or to be determined in a specified manner.

Example:    The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

…

17    Section 39 identifies various criteria which an arbitral body must take into account in making a determination under s 38. Subsection 39(4) has some bearing on the task of statutory construction:

39    Criteria for making arbitral body determinations

…

(4)    Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(a)      must take that agreement into account; and

(b)     need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.

18    Section 40, which also contains reference to the effect of there being an agreement involving the same negotiation parties, should be noted:

40    No re–opening of issues previously decided

    If:

(a)     the arbitral body is making a determination in relation to an act consisting of the creation of a right to mine in relation to an area; and

(b)    an agreement, or a determination by an arbitral body, under this Subdivision involving the same negotiation parties was previously made in relation to a future act consisting of the creation of a right to mine in relation to the same area; and

(c)    an issue was decided in the agreement or during the inquiry;

the negotiation parties must not, without leave of the arbitral body that is making the determination, seek to vary the decision on the issue.

19    The terms of s 41(1) should also be noted:

41    Effect of determination or agreement

(1)    Subject to this section:

(a)    a determination by the arbitral body; or

(b)    an agreement of the kind mentioned in paragraph 31(1)(b);

that the act may be done subject to conditions being complied with by the parties has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties. The effect is in addition to any other effect that the agreement or determination may have apart from this subsection.

…

20    The topic of “right to negotiate applications” in the NNTT is dealt with in Div 2 of Pt 3 of the NT Act. Two kinds of such applications may be made to the NNTT, one of which (relevantly) is a “Future act determination application” as mentioned in s 35. Under s 75, such an application may be made by a “negotiation party”.

21    Section 76 sets out various requirements for an application to the NNTT, namely that the application:

(1)    be in the prescribed form;

(2)    be given to the Registrar of the NNTT;

(3)    contain such information in relation to the matters sought to be determined as is prescribed; and

(4)    be accompanied by any prescribed documents and any prescribed fee.

22    Under reg 4 of the Native Title (Tribunal) Regulations 1993 (Cth) Form 5 must be used for a future act determination application.

23    If an application complies with s 76, the NNTT is obliged by s 77 to accept it.

24    By s 139, the NNTT must hold an inquiry into a “right to negotiate application” as identified in s 75. The parties to such an inquiry are the Government party, the native title parties and the grantee parties (see s 141(2)). There are other provisions in Subdiv B of Div 5 of Pt 6 which specify the powers of, and the procedure to be followed by, the NNTT in conducting such an inquiry.

25    Section 162 requires the NNTT, after holding an inquiry in relation to a right to negotiate application, to make a determination about the matters covered by the inquiry.

26    The task of statutory construction must also take into account relevant parts of the Preamble and some of the explicit objects set out in s 3 of the NT Act. To avoid duplication, these provisions are set out in [52] and [53] below.

27    The broad features of this legislative scheme, focusing upon the obligation to engage in good faith negotiations and the process for obtaining an arbitral determination, were described by in FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; 175 FCR 141 (Cox) at [19], [21] and [22] by Spender, Sundberg and McKerracher JJ:

19.    The expression “negotiate in good faith” is to be construed in its natural and ordinary meaning and in the context of the Act as a whole: Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303 at 319. Accordingly, the act of lodging an application under s 35, taken alone, cannot be relied upon in order to establish bad faith in the negotiating process (Strickland 85 FCR at 322). If negotiations reach a standoff, notwithstanding attempts in good faith to negotiate within the relevant six month period, there are no further obligations after the completion of the six month period on a party which wishes to lodge a notice under s 35 of the Act. There is no need, for example, to give further warning of the intention to do so.

…

21.    The scheme of the relevant provisions of the Act recognises Parliament’s intention that there must be a good faith period of negotiation in relation to the future act before there is any arbitral determination in relation to the future act. The period of six months provided for in s 35 of the Act ensures that there is reasonable time to enable those negotiations to be conducted. At the same time it permits the matter to be taken forward at the end of the six month period by way of an arbitral determination if the negotiations do not result in agreement. The ongoing protection provided for “negotiation parties” as defined by s 30A of the Act is that if any such party satisfies the arbitral body, in this case the Tribunal, that another negotiation party (other than the native title party) did not negotiate in good faith, the arbitral body must not make the determination on the application: s 36(2).

22.    There are two obligations, therefore, spelt out in the statutory scheme. The first is that the negotiations which are directed to reaching an agreement are to be carried out in good faith and the second is that a period of not less than six months has passed since the date on which the s 29 notice is given.

Background facts summarised

28    On 8 August 2014, the Executive Director of the Department of Mines and Petroleum of the Government of Western Australia (a Government party within the meaning of s 26(1A)(b) of the NT Act) gave notice, in accordance with s 29(2) of the NT Act, that a lease application M 04/459 under the Mining Act 1976 (WA) may be granted to Sheffield (a “grantee party” within the meaning of s 29(2)(c) of the NT Act). The grant of the lease would constitute a future act as defined in s 233 of the NT Act.

29    Following the s 29 notification, the Mount Jowlaenga Polygon #2 claim group (a “native title party” within the meaning of s 29(2)(b) of the NT Act), who claimed native title in the lease application area, appointed KRED Enterprises Pty Ltd (KRED) as its lawyers to engage in negotiations with the grantee party for s 31 negotiation purposes.

30    On 24 October 2016, when the native title party’s agreement had not been obtained by it, the grantee party applied to the NNTT (as the relevant “arbitral body”), pursuant to s 35 of the NT Act, for a determination that the act, being the grant of the lease, might be carried out.

31    Shortly after the making of the s 35 application, the grantee party directly contacted the three people who comprised the native title party, and told them that an agreement previously put to KRED, and rejected by KRED, remained open for acceptance notwithstanding the making of the s 35 application. The relevant terms of the letter are:

As you would be aware Sheffield Resources and KRED Enterprises, the representatives for the Mt Jowlaenga #2 People, have been attempting to negotiate an agreement between the parties for the Thunderbird Mineral Sands Project for almost 18 months but disappointingly we have not been able to reach a conclusion.

As a result of this failure to reach an outcome Sheffield could find no further choice but to place the negotiations in the hands of the National Native Title Tribunal (NNTT) for determination. I therefore wish to advise you that on Monday 24 October 2016 an application was lodged with the NNTT to commence the determination process. At the same time we have requested the NNTT to continue the mediation process via a Section 150 conference which will happen at the same time as the determination process.

This does not mean we do not want to enter into an agreement with the Mt Jawlaenga (sic) #2 People, in fact we do and the very generous offer that we made via KRED still stands. To assist in understanding what the offer was please find attached a summary of the key terms that we put forward and which currently remain on the table.

32    Prior to the making of the s 35 application, a negotiation protocol had been agreed between the grantee party and KRED on behalf of the native title party, which included a term that all negotiations between these parties would be between the grantee party and KRED and not directly with any of the people who comprised the native title party. The primary judge inferred that this was because the three people were not skilled to conduct such negotiations and desired to be professionally represented in any commercial negotiations about any agreement to the doing of the act so that their best interests would not be compromised and they would not be taken advantage of.

33    In subsequent submissions to the NNTT concerning whether the s 35 application should be determined, the native title party raised this conduct by the grantee party (i.e. in contacting the three individuals rather than continuing negotiations with KRED), as well as other post-s 35 application conduct by the grantee party in contacting them directly, as proof that the negotiations conducted by the grantee party failed to meet the s 31 good faith negotiation requirement, and accordingly prevented the s 35 application from being determined.

34    The member of the NNTT, who was appointed by the President of the NNTT to constitute the NNTT as the arbitral body to determine the s 35 application, made a future act determination on 14 June 2017 (see Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polygon # 2 [2017] NNTTA 34), after having decided on 22 May 2017 that the grantee party had conducted the relevant negotiations in good faith (see Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polygon # 2 [2017] NNTTA 25).

35    In the course of so finding, and contrary to the submissions of the native title party, the NNTT considered that, following the making of the s 35 application, the grantee party did not have a continuing duty to negotiate in good faith.

36    At [195] of its reasons for decision dated 22 May 2017, the NNTT stated:

195.    I have already commented on the relevance or otherwise of parties’ conduct following lodgement of the s 35 application (see [180] [which the parties agree should read [179]). In South Blackwater Coal v Kina (at [10]), Deputy President Sumner states ‘[i]n my view the scheme of the [Act] is that negotiations in good faith must occur before (but not after) the s 35 application is made. The reference in Walley v Western Australia to “the next stage” of the right to negotiate procedure being arbitration supports my conclusion.’ At this stage in negotiations, Sheffield were not obliged to negotiate in good faith according to the Act. Therefore, I will not make an adverse finding against Sheffield on this point.

37    At [196], the NNTT added:

196.    I will make clear that this finding is made on a relatively technical point and should not detract from the inappropriateness of the behaviour. Had Sheffield’s contact occurred prior to the lodgement of the s 35 application my findings may have been different. It appears clear that the purpose of this communication was to advance negotiations by circumventing Mount Jowlaenga’s legal advisors which is not acceptable.

38    At [179], the NNTT stated:

179.    I note the conversations involving Mr Lenard and Mr P Manado are said to have occurred in the days following the lodgement of this s 35 application. In Pilbara Stone v Cox, Member Shurven considered the Tribunal’s approach to parties’ conduct after an application of this type is made in the context of a good faith inquiry. Member Shurven noted that there had been a divergence of opinion between Tribunal Members on this issue in previous Tribunal decisions. She cited Deputy President Sumner, in South Blackwater Coal Ltd v Kina, where he stated ‘a party’s conduct after a s 35 application is made may be relevant to whether a party has negotiated in good faith before it was made’. Member Shurven concluded that the question needs to be dealt with on a case by case basis, depending on all the facts and circumstances. Member Shurven determined:

the approach I will take in this matter is to rely on the detailed information and documentation in front of me relating to negotiations up to lodgement of the s 35 application, and then to take into account any matters that may be relevant to those pre-FADA negotiations which arise following the lodgement of the FADA, but only in the pre-s35 context.

I believe a similar approach is appropriate in this matter. To the extent that it demonstrates the behaviour was not a one-off occurrence, I accept that this exchange is relevant to my considerations.

39    The native title party appealed from the NNTT’s decision to the Court under s 169 of the NT Act, which provides for an appeal “on a question of law”. Three grounds of appeal were raised. The first involved the issue of statutory construction as to whether or not the NNTT erred in taking the view that, on the proper construction of the relevant provisions, the grantee party did not have a good faith negotiation obligation after the making of a s 35 application. The second ground was that the NNTT erred at law because, having found at [179] that the grantee party’s post-s 35 application conduct in directly approaching the three members of the native title party could have evidentiary value in assessing whether the pre-s 35 application conduct involved a failure to negotiate in good faith, it failed to make the required assessment by reference to the post-s 35 application conduct identified by it. The third ground was whether the NNTT was obliged by law to take into account as a relevant consideration the grantee party’s “persistent conduct”, at the time when the s 35 application was before the NNTT, in continuing directly to approach or contact the three members of the native title party, in determining whether the grantee party’s conduct satisfied its obligation to negotiate in good faith.

The primary judge’s reasons summarised

40    After acknowledging that the issue of construction was not an easy one, the primary judge affirmed the NNTT’s view that the obligation of the negotiation parties under s 31(1)(b) to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the specified matters ceased upon the making of a s 35 application. His Honour’s reasons in support of this construction were broadly as follows. First, his Honour initially acknowledged that, at a general level, the NNTT’s view appeared to be “an anathema” to the text of the preamble and the general objects of the NT Act, not to mention s 31(1)(b) itself (at [80]). He suggested that every indication in the legislation “points towards ‘good faith’ being a constant requirement in all dealings under the [NT Act]” (at [80]).

41    Secondly, in rebutting any concern that the NNTT’s construction might encourage a Government or grantee party to behave badly in continuing negotiations with a native title party after a s 35 application had been made, his Honour said that such conduct could well be relied upon in determining, for the purposes of s 36(2), that the earlier negotiations had in fact been conducted otherwise than in good faith (at [81]). His Honour added that reputation concerns would likely constrain a Government or grantee party from taking advantage of the absence of any statutory obligation to conduct good faith negotiations after a s 35 application had been made.

42    Thirdly, his Honour considered that the NNTT’s construction was supported by a textual analysis of the key statutory provisions and by a consideration of the effect of adopting the alternative construction. A principal textual consideration was his Honour’s view that s 36(2) was not framed with continuing negotiations in mind because it used the past tense, i.e. “did not negotiate in good faith” (emphasis added).

43    Fourthly, while not as compelling as the matter referred to immediately above, the primary judge considered that the following additional matters supported the NNTT’s construction:

(1)    The distinction drawn in s 31(1)(b) between “process” and “outcome”. The process element relates to the obligation to negotiate in good faith, which does not require that an agreement actually be arrived at, but rather involves an obligation to negotiate “with a view to obtaining the agreement” of the native title party. Where the parties fail to reach or “obtain” an agreement, s 35 provides a mechanism for any negotiation party, after six months since the notification day, to apply to the arbitral body for a determination under s 38.

(2)    Although the arbitral body is obliged to make a determination under s 38 where an application for determination has been made under s 35, s 36(2) operates to prohibit the arbitral body from making such a determination where it finds that the s 31(1)(b) obligation to negotiate in good faith has not been satisfied. His Honour observed at [85] that there is a statutory note beneath s 36(2) which provides that a further s 35 application can nevertheless be made despite the prohibition. His Honour saw this as presupposing that fresh negotiations were conducted for at least six months, in good faith (at [85]).

(3)    When read as “a legislative scheme”, s 35(3) merely empowers the negotiation parties to continue to negotiate with a view to obtaining an agreement of the kind mentioned in s 31(1)(b) before an arbitral determination is made, but there is no obligation on the party to continue negotiations. His Honour noted at [86] that, although it would be expected that parties voluntarily proceeding to continue to negotiate would do so in good faith, there was no obligation to do so. If they did agree to continue negotiations, but acted in bad faith, his Honour reiterated that the arbitral body might find that they had not engaged in good faith negotiations in the period before the s 35 application was made (at [86]).

(4)    The primary judge was mindful, however, that a continuing obligation to engage in good faith negotiations post the making of a s 35 application could “complicate” and “possibly muddy” the decision-making process in respect of an arbitral determination. His Honour suggested at [87] that the arbitral process could become “unwieldy” if the arbitral body had to consider aspects of conduct during the continuing negotiations (i.e. post the making of a s 35 application) until an arbitral determination was about to be made under s 38.

44    Fifthly, the primary judge observed at [78] that he considered that the “conventional understanding depicted in such decisions as South Blackwater, as to the obligation on a Government party or grantee party to negotiate in good faith if negotiations are continued after the making of a s 35 application is correct”. The reference to South Blackwater is a reference to South Blackwater Coal Ltd [2001] NNTTA 23; 165 FLR 232, where Sumner DP found that the right to negotiate provisions fell into two distinct stages, namely negotiations and arbitration, while also acknowledging that this can involve two different and overlapping processes in view of the express terms of s 35(3). In summarising the parties’ respective submissions, the primary judge at [59] referred again to Sumner DP’s view in South Blackwater that “the scheme of the NTA is that negotiations in good faith must occur before (but not after) the s 35 application is made” and also to Sumner DP’s conclusion that some observations of Carr J in Walley v Western Australia [1996] FCA 409; 67 FCR 366 (Walley) supported his construction. In particular, Sumner DP considered that Carr J’s reference in Walley at 382 to “‘the next stage’ of the right to negotiate procedure” supported Sumner DP’s conclusions. It will be necessary to return below to consider Carr J’s observations in greater depth.

45    The primary judge’s conclusion on the central issue of construction is reflected in [88] of his Honour’s reasons for judgment:

88.    In all the circumstances, I consider it is appropriate to rule that s 35(3), in authorising negotiation parties to continue to negotiate with a view to obtaining an agreement of the kind mentioned in s 31(1)(b), does not carry with it the express obligation, or the implied obligation, to negotiate in good faith. That is to say, if there are continuing negotiations which, on the face of it, are not conducted by a Government party or a grantee party in good faith, that conduct, of itself, will not require the arbitral body to not determine the application under s 36(2). It may, however, be conduct that the Tribunal can properly take into account in informing an assessment of whether negotiations conducted prior to the making of the s 35 application were conducted in good faith.

The appeal

46    The appellant pressed three grounds of appeal. Ground 1 focusses on the central issue of construction. The appellant claims that the primary judge erred in concluding that the good faith obligation imposed by s 31(1)(b) did not attach to voluntary negotiations conducted by a negotiation party after a future act determination application has been made under s 35, but prior to a s 38 arbitral determination.

47    The second ground, which is in the alternative, is that if the primary judge’s construction is correct, it is essential to determine when the obligation of good faith ceased to apply to any continuing negotiations between the negotiating parties and, in particular, whether the good faith obligation applied to negotiations between the appellant and Sheffield in the period between 24 October 2016 and 1 November 2016 (being the dates upon which the s 35 application was lodged by Sheffield and accepted by the NNTT respectively).

48    The third ground, which is also in the alternative, is that the primary judge erred if he accepted that a s 35 application is made when a Form 5 is “lodged” with the Registrar, because this ignores the need for the NNTT to accept an application under s 77 of the NT Act before it has jurisdiction to entertain a s 35 application. The particulars to ground 3 include a claim that the primary judge failed to provide any reasons, or any adequate reasons, for finding that the legal obligation of negotiation parties under s 31(1)(b) to negotiate in good faith can change upon lodgement of a Form 5 application where there is no legal requirement on the party filing a Form 5 or the Registrar to inform any other negotiating party of the fact of lodgement or that their obligations under the NT Act had changed.

Disposition of the appeal

49    It is convenient to address each of the three remaining grounds of appeal in turn.

(a) Ground 1 – Issue of construction

50    The contemporary approach to statutory construction in Australia is well settled. It is described by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 (SZTAL) at [14] (footnotes omitted):

14.     The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

51    The recent observations of Gageler J in ESSO Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54 at [71] are also relevant to the task of construction in the particular circumstances here (footnote omitted):

71.    Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology.  Nothing simpler or more sophisticated is involved than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part.  Linguistic indications are important.  More important is the “purpose and policy” reasonably attributed to the provision within the statutory scheme.

52    The Preamble to the NT Act, as well as the objects set out in s 3 provide important context. The relevant parts of the Preamble are as follows (emphasis added):

…

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

…

53    As the primary judge noted at [5], two of the main objects of the NT Act are (emphasis added):

(1)    to provide for the recognition and protection of native title; and

(2)    to establish ways in which dealings affecting native title may proceed and to set standards for those dealings.

54    There can be no dispute that the right to negotiate has been, and remains, an important part of the fabric of the NT Act since its enactment. This reflects the explicit reference in the Preamble that future acts which affect native title should only be able to be validly done “if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate” (emphasis added). That is balanced by the reference in the Preamble to the importance to the broader Australian community of “certainty” that such acts may validly be done. In North Ganalanja at 637 McHugh J described the right to negotiate as a “valuable” one. And in Cox, Spender, Sundberg and McKerracher JJ accepted at [18] that “the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act and that it is not to be narrowly construed”.

55    The beneficial nature of the NT Act, as well as its Preamble and objects clause, are important aids in the task of statutory construction, but they cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning, in its textual and contextual surroundings, is clear (see, for example, Wacando v The Commonwealth [1981] HCA 60; 148 CLR 1 at 15-16 per Gibbs CJ; I W v City of Perth [1997] HCA 30; 191 CLR 1 at 12 per Brennan CJ and McHugh J and S v Australian Crime Commission [2005] FCA 1110; 144 FCR 431 at [22] per Mansfield J). That well-recognised qualification appears to have limited application here, however, given the absence of any plain or unambiguous language in the NT Act which indicates whether or not the obligation to negotiate in good faith terminates upon the making of a s 35 application.

56    In our respectful view, the following matters support a different construction from that preferred by the primary judge. First, the obligation to negotiate in good faith which is imposed by s 31(1)(b) is defined by reference to a particular possible outcome (i.e. the agreement of each of the native title parties to the doing of the act, whether subject to conditions or not), but is not explicitly subject to any particular point in time or cut-off date, such as when a s 35 application is made (or accepted).

57    Secondly, although the obligation to negotiate in good faith is imposed on all the negotiation parties, it is explicitly stated to be directed to obtaining the agreement of each of the native title parties to the specified matters. It is evident that the object of the obligation is directed to protecting the native title parties. This is further reflected in the fact that the s 36(2) prohibition on the arbitral body making a s 35 determination operates by reference to any negotiation party (i.e. Government party, grantee party or native title party) satisfying the arbitral body that any other negotiation party, other than a native title party, did not negotiate in good faith as mentioned in s 31(1)(b). Thus, while a native title party has an obligation to negotiate in good faith pursuant to s 31(1)(b), this is a matter of imperfect obligation and appears not to carry any relevant consequences under the NT Act if the native title party fails to discharge that obligation. This stands in sharp contrast to the statutory consequences for the other two categories of negotiation party.

58    Thirdly, the legislative regime plainly contemplates the possibility that the parties may voluntarily continue to negotiate notwithstanding that a s 35 application has been made. This is reflected, for example, in the terms of:

(1)    s 34, which expressly provides that an agreement of the kind mentioned in s 31(1)(b) has no effect in relation to the future act if it is made after the making of a determination under, relevantly, s 38;

(2)    s 35(3), which expressly provides that, even though a s 35 application has been made to the arbitral body, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in s 31(1)(b) before a s 38 determination is made;

(3)    s 36(4), which provides that the relevant Minister may give a written notice to the arbitral body where an application has been made under s 35, four months have lapsed and before either the negotiation parties have made an agreement of the kind mentioned in s 31(1)(b) or the arbitral body has made a determination under s 38; and

(4)    s 38(1A), which contemplates that an arbitral body determination under s 38 may, with the agreement of the negotiation parties, provide that a particular matter be the subject of further negotiation.

As Sheffield point out, s 35(3) was not in the original Native Title Amendment Bill 1997, but was subsequently inserted by way of an amendment to that Bill in 1998. The effect of s 35(3) is explained in the Supplementary Explanatory Memorandum to Government Amendments moved in July 1998 to the Native Title Amendment Bill 1997 (No 2), which stated at page 25:

This amendment to section 35 in the Bill makes it clear that negotiations for acts covered by the right to negotiate may continue even after one of the parties has applied to the arbitral body for a determination. The fact that negotiations are continuing should not delay the determination by the arbitral body. The parties are free to reach an agreement until such time as a determination is made under section 36A or 38…

That Supplementary Explanatory Memorandum went on to explain at page 25, in relation to the proposed insertion of s 35(3), that:

Matters which have been agreed between the negotiating parties, but which do not completely satisfy paragraph 31(1)(b), can be disclosed to the arbitral body, which must take them into account under subsection 39(4) if the negotiating parties consent.

59    Merely because there is no obligation on the Government party or a grantee party to continue to negotiate once a s 35 arbitral determination has been made does not necessarily mean that the obligation to negotiate in good faith, as imposed by s 31(1)(b), does not apply as a matter of implication where the parties do agree to continue to negotiate. It is significant that s 35(3), which contemplates that the negotiation parties may voluntarily agree to continue to negotiate after the making of a s 35 application, describes the objective of those post-s 35 application negotiations as being to obtain an agreement of the kind mentioned in s 31(1)(b) before an arbitral determination is made. An agreement of that kind is an agreement which results from good faith negotiations as to the doing of the future act with or without conditions. The good faith obligation is an integral part of the process which is directed to the objective of making an agreement with the native title parties. That obligation subsists even though an agreement may not ultimately be reached.

60    Section 35(3) operates to deem a s 35 arbitral application to have been withdrawn if the parties voluntarily agree to negotiate in parallel and then reach an agreement of the kind set out in s 31(1)(b). Given this significant effect on the arbitral process of the making of such an agreement, it is more likely that the legislature intended that any such agreement be one which has been arrived at after good faith negotiations and not otherwise, consistently with s 31(1)(b).

61    Fourthly, the past tense used in s 36(2) (i.e. “did not negotiate…”) is not a determinative factor in favour of the construction preferred by the primary judge. That is particularly so because the possibility of post-s 35 application negotiations being voluntarily conducted is plainly contemplated in the statutory scheme and, where that occurs, s 36(2) continues to apply. Thus the issue whether any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in s 31(1)(b) may involve consideration by the arbitral body of conduct which occurred in negotiations carried out both pre and post the making of the s 35 application. This construction is consistent with the use of the past tense in s 36(2).

62    Fifthly, there is a question concerning the reach of s 31 having regard to its heading, “Normal negotiation procedure”. Does this heading mean that the contents of s 31 are confined to a discrete procedure or process, namely negotiations conducted before the point in time when a s 35 application is made? If so, this would mean that s 31 has no application after that point in time, which is the view favoured by the primary judge.

63    In accordance with s 13 of the Acts Interpretation Act 1901 (Cth), as “material” that is part of the NT Act (and in the absence of any contrary intention), the heading to s 31 must be taken into account in construing it and other related provisions. On one view, the heading might suggest that s 31 is confined to a particular process, namely the “normal negotiation procedure”, which is the process which occurs prior to the making of a s 35 application. Adoption of such a construction would confine the mediation role of an arbitral body under s 31(3) to the period before a s 35 application is made. Thus there would be no capacity for the NNTT, even at the request of the parties, to mediate in the course of negotiations which take place after a s 35 application is made notwithstanding that the NT Act plainly contemplates that such negotiations may voluntarily occur. It is difficult to see how such construction promotes the purpose or object of the legislation.

64    The NT Act contemplates that the ongoing negotiations and s 35 arbitral determination proceedings may be concurrent. What purpose is served by preventing the NNTT from undertaking, at the request of a negotiating party, a mediation role in any post-s 35 negotiations? The same question might be asked vis-à-vis the obligation of good faith in s 31(1)(b). Why, in the absence of clear and unambiguous language, confine that obligation to the period preceding the making of a s 35 application and not beyond? All the more so in circumstances where any continuing negotiations as the parties voluntarily engage in will be for the same purpose as specified in s 31(1)(b), namely to obtain the agreement of each of the native title parties to the doing of the act, with or without conditions. In short, given that the possibility of voluntary ongoing negotiations occurring after the making of a s 35 application, what purpose is served by freeing such negotiations from the constraints and requirements (or standards) which apply to negotiations conducted in the period before the making of the s 35 application? Why should the native parties in particular lose the protections which they enjoy in respect of negotiations carried out in that earlier period?

65    Some significance also attaches to the fact that the only express exception to the “normal negotiation procedure” in s 31 is where the “expedited procedure” applies (see s 32). Subdiv P expressly contemplates that negotiations must be conducted prior to the making of a s 35 application, and may be conducted after such an application is made. If the good faith obligation was not intended to apply to the latter negotiations it would have been very easy to add that as another express exception to s 31.

66    Sixthly, the better view, and one which promotes the purpose or object of the NT Act (see s 15AA of the Acts Interpretation Act 1901 (Cth)), is to regard any post-s 35 voluntary negotiations as negotiations which are carried out under Subdiv P and to which the standards imposed by that subdivision apply. This construction means that:

(1)    s 31 continues to apply to any such voluntary negotiations, including important beneficial provisions such as ss 31(1)(b) and (3) and (4);

(2)    s 34 would also apply, which would clarify that an agreement reached as a result of a voluntary post-35 application negotiation would have no effect in relation to the act for the purposes of Subdiv P of Div 3 of Pt 2 if the agreement resulting from those negotiations is made after the making of the s 38 determination;

(3)    s 36(2) would also operate in respect of any post-s 35 application negotiation, so as to encourage the relevant negotiation parties to negotiate in good faith (as reflected in s 31(2));

(4)    s 41A would apply, such that any agreement obtained as a result of a post-s 35 application negotiation would have to be provided by the negotiation parties to the arbitral body and they would also have to advise the relevant Minister in writing of the making of such an agreement; and

(5)    the reference to an “agreement” in both ss 39(4) and 40(b) should be construed as a reference to an agreement which has been arrived at after good faith negotiations. Having regard to the terms and effect of those provisions, it is difficult to see why they should be construed as including an agreement which has been reached by the negotiation parties otherwise than as a result of good faith obligations.

Significantly, the primary judge’s preferred construction does not produce these consequences, nor promote the beneficial objects of the legislation. Nor does it produce harmony in the operation of the relevant provisions in Subdiv P, in contrast with the alternative construction.

67    Seventhly, in our respectful view, too much can be made of the distinction between “process” and “outcome” in s 31(1)(b). That distinction is still preserved if the word “agreement” is construed therein as referring not only to the objective of obtaining an agreement before a s 35 application is made, but also an agreement which is reached after that event as long as the agreement is finalised before the making of the s 35 determination by the arbitral body.

68    Eighthly, in our respectful view, the central issue of construction here is not relevantly assisted by Carr J’s observations in Walley. That is because:

(1)    That issue did not arise there. Rather, the primary issue in Walley was the meaning of the phrase “no such agreement” in s 35 of the NT Act (as it then stood) and whether compliance with s 31(1)(b) was a condition precedent to the making of an application under s 35.

(2)    Importantly, provisions such as ss 31, 34, 35, 36, 37 and 38 have been significantly amended since Walley was decided (as is also the case with respect to Lee J’s decision in Brownley v Western Australia (No 1) [1999] FCA 1139; 95 FCR 152 (Brownley), which contains observations at [16]-[27] regarding the obligation of the Government party to negotiate in good faith prior to a s 35 application being made). This is reflected in the terms of those provisions as in force prior to the 1998 amendments (i.e. the relevant time for the purposes of Walley and Brownley), and noting in particular the different terms of s 35:

31    Normal negotiation procedure

    Government party to negotiate

(1)    Except where the notice includes a statement that the Government party considers the act attracts the expedited procedure, the Government party must:

(a)    give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

(b)    negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to:

(i)    the doing of the act; or

(ii)    the doing of the act subject to conditions to be complied with by any of the parties.

    Arbitral body to assist in negotiations

(2)    If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.

…

34    Parties to give copy of any agreement to arbitral body

    If, at any time before any determination is made by the arbitral body under section 38, the negotiation parties make an agreement of the kind mentioned in paragraph 31(1)(b) or subsection 32(5), they must give a copy of it to the arbitral body.

35    Application for determination

Any negotiation party may apply to the arbitral body for a determination in relation to the act if there is no such agreement within:

(a)    if the act is the grant of a licence to prospect or explore for things that may be mined – the period of 4 months starting when the notice under section 29 is given; or

(b)    in any other case – the period of 6 months starting when the notice is given.

36    Determination to be made within specified period

    All reasonable steps to be taken

(1)    Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act within:

(a)    if the act is the grant of a licence to prospect or explore for things that may be mined – the period of 4 months starting when the application is made; or

(b)    in any other case – the period of 6 months starting when the application is made.

    Report to Commonwealth Minister

(2)    If the arbitral body is the NNTT and it does not make the determination within the period, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so.

37    No determination if agreement

    If, before it makes a determination, the arbitral body is given a copy of an agreement in accordance with section 34, it must not make the determination.

38    Kinds of determination

    Kinds of determination

(1)     Except where section 37 applies, the arbitral body must make one of the following determinations:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)    a determination that the act may be done subject to conditions to be complied with by any of the parties.

…

(3)    It is particularly significant that s 35(3) was not in force when either Walley or Brownley was decided. As noted above, it makes specific and express provision for the negotiating parties to continue to negotiate voluntarily with a view to obtaining an agreement of the kind mentioned in s 31(1)(b) notwithstanding that one of them has made an application under s 35. Justice Carr’s reference in Walley at 382 to “the next stage of making an application under s 35 for a determination” should not be read as denying that the negotiation parties may continue to negotiate with a view to obtaining the agreement of the native title parties notwithstanding that an application for a determination has been made to the arbitral body. Nor should it be read as stating that there is no ongoing obligation to negotiate in good faith in any such negotiations which issue, as noted above, simply did not arise there.

69    Ninthly, it is difficult to see how the issue of construction is affected by consideration of the “muddying” ramifications as referred to by the primary judge (see [43(d)] above). Those ramifications also arise under the primary judge’s preferred construction, because of the relevance under that analysis of post-s 35 application conduct in informing an assessment of the pre-s 35 application conduct.

70    Finally, we do not accept Sheffield’s submission that this construction of the relevant provisions of the NT Act is inconsistent with the Full Court’s decision in Cox. Significantly, the specific issue of whether there is a continuing obligation to negotiate in good faith notwithstanding the making of a s 35 application did not arise for determination in Cox. The observations of the Full Court in [19], [21] and [22] (as set out in [27] above) must be read accordingly.

71    In Cox, two questions of law were identified by the Full Court at [17] as arising in the appeal. The relevant observations were plainly directed to the first of those questions, which was whether, on the proper construction of s 35 of the NT Act when read with s 31(1)(b), the NNTT has the power to make a determination under s 38 regardless of the stage at which negotiations had reached provided that the six-month period referred to in s 35(1)(a) had expired and the negotiation party had negotiated in good faith during that period. No issue arose there as to whether the obligation of good faith continued in any negotiations which are voluntarily conducted after a s 35 application had been made. The reference in [19] of Cox to there being “no further obligations after the completion of the six-month period on a party which wishes to lodge a notice under s 35 of the Act”, is a reference to obligations relating to the arbitral process and not obligations which attach to any ongoing negotiations conducted by the negotiation parties voluntarily and in parallel with the arbitral process. This is reflected in the example which is given by the Full Court in [19], namely that there is no need for the negotiating party who makes an application under s 35 “to give further warning of the intention to do so”.

(b) Ground 2 – When does the obligation to negotiate in good faith cease?

72    As noted above, this ground is expressed to be in the alternative to ground 1. Given the appellant’s success in relation to ground 1, this ground does not arise for determination. Moreover, the appellant submitted at the hearing of the appeal that ground 2 was “otiose” and was covered by ground 3.

(c) Ground 3 – Significance of lodgement of a Form 5 application

73    As noted above, this ground is also expressed to be in the alternative and, therefore, does not arise.

Appropriate relief

74    The appellant seeks a range of relief. The starting point is s 169 of the NT Act which deals with appeals to the Court from decisions and determinations of the NNTT and sets out the relief which may be granted. That provision relevantly states:

169     Appeals to Federal Court from decisions and determinations of the     Tribunal

    Appeal from Tribunal determination or decision—right to negotiate applications

(1)    A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding.

…

How appeal is to be instituted

(4)        An appeal is to be instituted:

(a)     within the period of 28 days starting on the day on which the decision or determination of the Tribunal is given to the person or within such further time as the Court (whether before or after the end of that period) allows; and

(b)      in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

Jurisdiction of Federal Court

(5)    The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.

Court to make order

(6)    The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

Orders

(7)    Without limiting subsection (6), the orders that may be made by the Court on an appeal include:

(a)    an order affirming or setting aside the decision or determination of the Tribunal; or

(b)    an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

75    In view of the reasons above, the appeal should be allowed, with costs.

76    As to the other relief sought by the appellant, it is not appropriate for this Court to determine whether or not Sheffield was in breach of its obligation of good faith. That matter should be determined by the NNTT in the light of these reasons for judgment. There is no reason why the remitted hearing should be conducted by a differently constituted NNTT. That issue should be left to the President to determine.

77    The question of good faith arises exclusively from the NNTT’s decision dated 22 May 2017. In view of the volume of material and lengthy submissions which were made leading up to that decision, which was made on the papers, it will be a matter for the NNTT to decide the extent to which the parties should have an opportunity to supplement that material on the remitter.

78    As to the NNTT’s decision dated 14 June 2017, it is appropriate that the implementation and operation of that decision be stayed pending the decision of the NNTT on the question of good faith on the remitter. That decision will be determinative of the power of the NNTT to make a determination in terms of the decision dated 14 June 2017. It is appropriate therefore to require the first respondent promptly to notify the Court of the outcome of the remitter so that the legal status of the decision dated 14 June 2017 can be determined, on the papers, and without a further oral hearing.

79    It is neither necessary nor appropriate for the Court to grant declaratory relief in the terms sought in paragraph 3.4 of the notice of appeal. It is sufficient to direct that the remitted hearing be conducted according to law, which necessarily obliges the NNTT to have regard to the Court’s reasons. Orders will be made accordingly.

Associate:

Dated:    20 December 2017

REASONS FOR JUDGMENT

WHITE J:

80    There are two issues raised by this appeal. The first question is whether parties engaging in negotiations after a future act determination application (FADA) has been made pursuant to s 35(1) of the Native Title Act 1993 (Cth) (the NT Act) are obliged, by the NT Act, to do so in good faith. North and Griffiths JJ would answer this question in the affirmative. I respectfully have reached the contrary conclusion.

81    The second issue arises only if the first question is answered in the negative. It concerns the precise time at which the obligation to negotiate in good faith concludes.

82    North and Griffiths JJ have set out in their reasons the factual circumstances giving rise to the appeal, the relevant provisions of the NT Act, a summary of the reasons of the primary Judge, and the appellants’ grounds of appeal. I gratefully adopt their Honours’ description and summary of those matters.

The scheme for negotiation and determination

83    Sections 31, 35 and 36 of the NT Act, which are at the heart of the appeal, form part of Subdiv P in Div 3 of Pt 2 of the NT Act. The subject matter of Div 3 is “future acts” which are defined in s 233. In general terms, a future act is an act occurring after 1 July 1993 (if the act is of a legislative character) or 1 January 1994 (if the act is of any other kind) which affects native title. Section 24OA of the NT Act provides that, unless otherwise provided by the NT Act, a future act is invalid to the extent that if affects native title. That position is also made plain by the overview statement contained in s 24AA(2):

[T]o the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

84    Subdivision P is concerned with future acts by the Commonwealth, a State or a Territory (the Government Party) involving, generally speaking, the authorisation of mining activities (see s 25(1)). Looked at broadly, the evident purpose of the scheme in Subdiv P is to provide means of obtaining certainty as to whether future acts of this kind may be permitted despite their effect on native title. The scheme contemplates four such means: negotiated agreement; Governmental decision when an expedited procedure is appropriate; arbitral determination; or Ministerial determination. The scheme puts particular emphasis on the parties negotiating an agreement with respect to the carrying out of future acts.

85    The principal elements of the scheme for negotiation and determination established by Subdiv P which are relevant for present purposes are:

(1)    by reason of s 29, the Government Party must give notice of the proposed act to specified persons. These include any registered native title body corporate and any registered native title claimants (collectively a “Native Title Party”, although s 30 provides for other persons also to be a Native Title Party) (s 29(2)(a)-(b)), and to the person who applied for the act to be done (the Grantee Party) (s 29(2)(c));

(2)    the notice to be given by the Government Party must include prescribed information and, in particular, must specify a “notification day”, s 29(4);

(3)    two forms of action are contemplated: submissions to the Government Party by the Native Title Parties and negotiations between all Negotiation Parties, who are identified in s 30A as:

(i)    the Government Party;

(ii)    any Native Title Party;

(iii)    any Grantee Party;

(4)    in relation to the first action, s 31(1)(a) requires the Government Party to give all Native Title Parties an opportunity to make submissions to it, in writing or orally, regarding the act;

(5)    in relation to negotiations, s 31(1)(b) requires negotiation in good faith. Because of its importance in the resolution of the appeal, I set out the full terms of s 31(1)(b):

(b)    the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

(i)    the doing of the act; or

(ii)    the doing of the act subject to conditions to be complied with by any of the parties.

Note:    The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).

(6)    the use of the word “must” in s 31(1)(b) indicates that good faith negotiation is mandatory. Further, that negotiation must be directed to a particular end, namely, the obtaining of agreement by each of the Native Title Parties to:

(a)    the doing of the act; or

(b)    the doing of the act subject to conditions to be complied with by any of the parties;

(7)    any one Negotiating Party can request the assistance by the arbitral body (defined in s 27) in the negotiations and, in the event of such a request, the arbitral body is required to mediate among the parties to assist in obtaining agreement, s 31(3);

(8)    any Negotiating Party may apply to the arbitral body for a determination of whether the act may be done, with or without conditions, but only if at least six months have passed since the notification day and only if no agreement of the kind mentioned in s 31(1)(b) has been made, s 35(1);

(9)    the parties may continue to negotiate after the making of an application under s 35(1) (see s 35(3)). If those negotiations result in an agreement of the kind mentioned in s 31(1)(b), the application to the arbitral body is taken to be withdrawn (s 35(3));

(10)    the exercise by an arbitral body of the power to make a determination pursuant to s 38 is subject to some constraints:

(a)    it must take all reasonable steps to make a determination as soon as practicable (s 35(1)), with s 36(3) providing for a form of accountability to the Commonwealth Minister in the case of the National Native Title Tribunal (the Tribunal) in the event that no determination is made within six months of the making of the FADA;

(b)    it must not make a determination if a Negotiating Party satisfies it that any other Negotiating Party (other than a Native Title Party) “did not” negotiate in good faith as mentioned in s 31(1)(b): s 36(2). In FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141 at [11], the Full Court held that this limitation affects the power of the arbitral body and not its jurisdiction:

The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is function of the jurisdiction conferred on the Tribunal.

(c)    it cannot make a determination if the Negotiating Parties make an agreement of the s 31(1)(b) kind;

(d)    subject to some qualifications, the arbitral body is to make a determination that the act must not be done, that the act may be done, or that the act may be done subject to compliance with stated conditions;

(11)    the effect of a determination by an arbitral body or of an agreement of the kind mentioned in s 31(1)(b) is that the act may be done subject to compliance with any stipulated conditions (as if the conditions were terms of a contract among the Negotiation Parties), s 41.

86    Part 6, Div 5, Subdivs B and C of the NT Act govern the manner in which the Tribunal, when it is the arbitral body, is to determine a FADA. The Tribunal may hold a hearing (s 151) at which the parties are entitled to appear and to present evidence (ss 152 and 156) and to be represented by a legal practitioner (s 143). After completing its enquiry, the Tribunal is to make a determination in which it must state the findings of fact on which it is based (s 162).

87    Section 32 of the NT Act provides for an expedited procedure by which the Government Party may, in a limited class of cases, do a future act, without there having been negotiation or arbitration.

88    Section 36A provides means by which a relevant Minister may make a determination concerning the future act. One condition for the exercise of this power is that the arbitral body not have made a determination within six months of the making of the FADA and within such further time as the Minister has requested.

89    It is evident that the Subdiv P scheme is intended to provide a balance between two interests. First, the involvement by native title parties in decisions concerning matters affecting their native title interests. Secondly, the provision of some certainty within a reasonable time as to whether the future act may be done.

90    A number of elements make apparent the desirability of agreement by negotiation. First, the parties are obliged to engage in good faith negotiations with a view to reaching agreement. It is not possible for any party to avoid negotiation and to proceed directly to arbitration. Section 35(1)(a) makes this plain by requiring at least six months to have passed after the notification day before a FADA can be made and s 31(1)(b) makes negotiation in good faith mandatory. The evident purpose of these provisions is that there should be a minimum period of six months during which good faith negotiations must occur: FMG Pilbara v Cox at [21]. The requirement for good faith negotiations is reinforced by the prohibition on an arbitral body making a determination on a FADA if satisfied by an Negotiation Party that any other Negotiation Party (other than a Native Title Party) did not negotiate in good faith.

91    Section 35(3) also indicates the importance attached to negotiation, by providing that the Negotiation Parties may continue to negotiate even after a FADA has been made. It is apparent that the negotiations contemplated by s 35(1) may occur at any time after the making of the FADA, whether that be before any hearing by the arbitral body, during the currency of the hearing, or after the arbitral body has reserved its decision but before it delivers its determination.

92    In FMG Pilbara v Cox, the Full Court accepted, at [18], that the right to negotiate regime contained in Subdiv P is an element of the protection of native title and gives effect to one of the main objects of the NT Act stated in the Preamble to the NT Act as follows:

In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate.

Accordingly, the right to negotiate is not to be narrowly construed.

93    The intention of the Subdiv P scheme to provide certainty about whether or not a Grantee Party may carry out the future act within a reasonable period is evident in the stipulation of a finite period for negotiation before a Negotiation Party may apply for an arbitrated determination (s 35(1)(a)); in the requirement that the arbitral body take all reasonable steps to make a determination in relation to the act as soon as practicable (s 36(1)); in the provisions for some accountability by the Tribunal when it is the arbitral body if it does not make a determination within six months (s 36(3)); and in the provisions allowing the Minister to make a determination in the event of delay by the arbitral body (s 36(4), s 36A). In this way, effect is given to the importance stated in the Preamble to the NT Act “that the broader Australian community be provided with certainty that [future acts] may be validly done”.

Negotiating in good faith

94    Negotiating in good faith has been said to involve acting honestly, without ulterior motive or purpose, with an open mind, willingness to listen, willingness to compromise, an active and open participation of the other parties, and the making of every reasonable effort to reach an agreement: Brownley v Western Australia [1999] FCA 1139, (1999) 95 FCR 152 at [20], [23]-[24]; Walley v Western Australia [1999] FCA 3, (1999) 87 FCR 565 at [7]. Delay, obfuscation, intransigence and pettifoggery have been said to be indicia of a want of good faith: Brownley at [25]. Negotiation in good faith is not confined to the making of a reasonable offer: Walley at [15].

95    The conduct of the negotiating parties is to be assessed objectively. In Western Australia v Taylor (1996) 134 FLR 211, the Tribunal listed a number of indicia (known as the Njamal Indicia) which may bear on the question of whether a party has negotiated in good faith.

96    The obligation imposed by s 31(1)(b) is a single composite obligation. The Negotiating Parties are obliged “to negotiate in good faith” with a view to obtaining agreement of the stipulated kind. Section 31(1)(b) is not to be understood as imposing separately an obligation to negotiate and an obligation to do so in good faith. It may be natural for the purposes of some analysis to separate out these aspects of the obligation. This was the understanding of s 31(1)(b) for which the appellants contended. However, I consider it plain that the statute imposes a single composite obligation.

97    Section 31 does not in terms specify any period during which the obligation to negotiate in good faith remains current. It seems implicit in s 31 that the obligation commences upon the Governing party giving the s 29 notice. There is no reason to suppose that the expiry of the six month period fixed by s 35(1)(a) operates by itself to terminate the obligation. Obviously enough, the obligation concludes on the making of an agreement of the s 31(1)(b) kind.

98    The making of a FADA seems implicitly to end the obligation to negotiate in good faith imposed by s 31(1)(b). That is the effect of s 35(3) which permits, but does not oblige, the Negotiating Parties to continue to negotiate.

Identifying the issue of construction

99    The real question raised by the appellants’ first ground of appeal is whether a failure by a negotiation party to negotiate in good faith after a FADA has been made is a failure of the kind to which s 36(2) refers, so as to preclude the arbitral body, on satisfaction that there has been such a failure, from making a determination on the application.

100    The appellants advanced an alternative position, namely, that the issue bears on whether an “agreement of the kind mentioned in s 31(1)(b)” has been made. The submission was that an essential element of the agreement to which s 31(1)(b) refers is that it be the product of good faith negotiation. Counsel made this submission with particular reference to s 35(3) of the NT Act which refers to “an agreement of the kind mentioned in paragraph 31(1)(b)”.

101    Counsel submitted that this understanding arose naturally from the language with which s 31(1)(b) is expressed and the from the general policy of the NT Act in providing protection for native title rights and interests. In addition, counsel submitted that the inference that the term “agreement of the kind mentioned in paragraph 31(1)(b)” referred to the process by which the agreement is reached as well as its content is confirmed by the provision in s 35(3) that the making of the agreement has the effect that the FADA is taken to be withdrawn. That consequence could only have been intended, so he submitted, if the agreement was the product of good faith negotiations.

102    In my opinion, the position for which the appellants contended in this respect should not be accepted. Section 31(1)(b) is more naturally to be understood as referring to an agreement having the specified content, without the inclusion of a requirement as to the process by which the agreement is reached. A number of matters indicate that that is so.

103    In the first place, it is not obvious that an agreement for the doing of the future act (whether or not subject to conditions) reached otherwise than by good faith negotiation, should not be regarded as an agreement of the requisite kind. There is a recognisable distinction between negotiating in good faith, on the one hand, and the making of a reasonable offer, on the other: cf Walley at [15]. It is possible to envisage, for example, a circumstance in which a Grantee Party makes a reasonable (or even generous) offer and then declines to engage in any good faith negotiation concerning it or to countenance any variation of it. I am unable to discern any indication in the NT Act that an agreement resulting from the acceptance of a reasonable offer in that circumstance would not be “an agreement of the kind mentioned in paragraph 31(1)(b)”.

104    Secondly, the subject of the s 31(1)(b) obligation is good faith negotiation “with a view to” obtaining the agreement of the specified kind. That manner of expression indicates that the mandatory obligation relates to the conduct of the parties in the negotiation, and not to the product of the negotiation.

105    Thirdly, had the Parliament intended that an element of a s 31(1)(b) agreement be the process by which it was derived, it would have been so easy for it to have said so, and it did not. The significance of this consideration is underlined by the fact that Parliament did give attention in s 36(2) to the consequences of a failure to negotiate in good faith. It did not provide for any further consequence, such as that an agreement reached without good faith negotiation should not be effective.

106    Fourthly, if compliance with the process is an element of an agreement of the requisite kind, considerable uncertainty may be introduced into the operation of the Subdiv P scheme. Such uncertainty could arise if one of the parties to an agreement later took the view that it was not a product of good faith negotiation and then sought arbitration (s 35(1)). A Minister, taking a similar view, could consider that the circumstances mentioned in s 36(4) and s 36A(1) had arisen, thereby enlivening the Minister’s power to make a determination despite the extant agreement. Alternatively, there could be uncertainty as to whether the future act may be carried out validly, having regard to the terms of s 28(1)(f) and s 41(1). Instead of issues of these kinds being able to be resolved in a reasonably straight forward manner by examination of the agreement, a more complex evaluation of the parties’ conduct and motives may be required. Further still, it is not apparent that an arbitral body such as the Tribunal would have jurisdiction to resolve a dispute about whether an agreement was negotiated in good faith. If it does not, there is the potential for satellite litigation with the consequent delay in concluding the arbitral process which that would entail. This does not seem consistent with the Subdiv P scheme intention to achieve certainty promptly.

107    Fifthly, in Walley v State of Western Australia (1996) 67 FCR 366 at 375, Carr J rejected a submission to similar effect to that made by the present appellants. His Honour regarded a s 31(1)(b) agreement as defined in terms of what it permits and not by the manner by which it was derived, with the consequence that such an agreement could be reached even before any good faith negotiations. It is the case, as the appellants observed, that Subdiv P was amended in 1998 after this decision in Walley Australia (1996) 67 FCR 366, but s 31(1)(b) which Carr J was construing has not been amended.

108    Finally, I do not regard the submission concerning the effect of an agreement on a FADA, for which s 35(3) provides, as being a persuasive indication. All it means is that the secondary (arbitral) process by which a future act may be permitted comes to an end. It is not as though that denies the arbitral body some supervisory role with respect to the agreement, because it did not have such a role in any event. The position is no different from that which would have applied had the parties reached agreement during the mandatory period of good faith negotiation.

109    Accordingly, I accept the submission of the first respondent (Sheffield) that the primary issue is whether a failure to negotiate in good faith after a FADA has been made operates, by reason of s 36(2), to preclude an arbitral body from making a determination on the application. Unless the arbitral body is satisfied of that fact, it is bound to conduct an inquiry and to make a determination of the FADA – see ss 38(1), 139(b) and 162 of the NT Act.

First issue: Consideration

110    Against that background, I turn more directly to the issue of statutory construction raised by Ground 1.

111    In my opinion, a number of matters indicate that s 36(2) refers only to a failure to negotiate in good faith in the period of mandatory good faith negotiation for which s 31(1)(b) provides, and not to the negotiations to which s 35(3) refers.

112    First, it is to my mind significant that any negotiations occurring after a FADA has been made are voluntary. Section 35(3) is permissive in that it provides that the Negotiation Parties may continue to negotiate even after the FADA has been made. This contrasts with s 31(1)(b) which provides that the Negotiation Parties must negotiate in good faith. The imposition of an obligation to negotiate in good faith is understandable in respect of a statutorily imposed obligation to negotiate. The purpose of that obligation could be frustrated if a party could discharge the statutory obligation even though acting without good faith. The requirement for good faith in voluntary negotiations lacks that purpose and appears to be unnecessary. Put slightly differently, a requirement of good faith may be regarded as a necessary incident for negotiations which are mandatory, but not so in relation to those in which parties engage voluntarily.

113    Related to this first consideration is that the structure of Subdiv P is to provide for both a negotiation phase and an arbitration phase, with the expiration of the former being a condition for the latter. Sections 35 and 36 concern the arbitral phase and s 31 the negotiation phase. That structure tends to reinforce the impression that s 36(2) is referring only to a want of good faith in the negotiation phase. I am not overlooking that it is s 35(3) which provides for the permitted negotiations. However, this seems to be a subordinate provision in the arrangements for arbitration for which ss 35 and 36 provide.

114    There is another indication that the NT Act regards voluntary negotiation of the kind contemplated by s 35 differently from the mandatory negotiation in good faith to which s 31 refers. Section 35 does not contain any ancillary provisions relating to the negotiation. In particular, there are no counterparts in s 35 to ss 31(2), (3) and (4). The inference may readily be drawn that the legislature did not consider provisions of that kind to be necessary in respect of the voluntary negotiations contemplated by s 35(3) as there is no obligatory element of good faith in such negotiations. This does not mean that an arbitral body may not assist the negotiation parties by mediating, as is contemplated by s 31(3) and (4). Section 150 of the NT Act provides expressly that the Tribunal, when it is the arbitral body, may hold a conference of the parties to help in achieving an agreed resolution. It is reasonable to suppose that the legislation governing other arbitral bodies would contain corresponding provisions.

115    Secondly, the text of s 36(2) is significant. It is expressed to operate only in respect of a Negotiating Party (other than a Native Title Party) who “did not” negotiate in good faith. The words “did not” are not apt as a reference to the current or continuing negotiations which may occur pursuant to s 35(3). The past tense in the words is naturally to be understood as a reference to conduct of a Negotiating Party at some antecedent time. The appellants accepted that that was so, but submitted that the words referred to any time antecedent to the moment at which the determination is made. In my view, that is not a likely construction. It is more natural to understand the term “did not” as referring to the particular time in the past when good faith negotiation was required. Further, the appellants’ construction does not sit well with the process of arbitral determination, summarised earlier in these reasons. Had it been intended that s 36(2) would encompass negotiations occurring after a FADA, during the currency of an arbitration and even after the arbitral body had reserved its decision, it is more likely that it would have used a term such as “is not negotiating in good faith” or “did not and/or is not now negotiating in good faith” or an equivalent term.

116    Thirdly, the task of statutory construction requires a court to strive to give meaning to every word in the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71]. In the present case, this requires effect to be given to the clause in s 36(2) “as mentioned in paragraph 31(1)(b)”, as the section is not to be construed as though that clause was not present. The express reference to the negotiation in good faith “mentioned in s 31(1)(b)” indicates, in my opinion, that s 31(2) refers to the single composite obligation to negotiate in good faith imposed by s 31(1)(b). In addition, it is significant that, while referring expressly to the negotiation mentioned in s 31(1)(b), s 36(2) does not refer at all to the negotiations mentioned in s 35(3).

117    Further, the clause “as mentioned in paragraph 31(1)(b)” has cognates in s 31(2) and (4)(b). In those provisions, it is plain that the expressions refer only to the single composite obligation of good faith negotiation for which s 31(1)(b) provides. This is another indication that s 36(2) is referring to the same negotiations.

118    Fourthly, there is some incongruity in understanding the legislative scheme as permitting a party to choose, in bad faith, not to engage in negotiation at all but as imposing an obligation on a party who does choose to negotiate to do so in good faith. The ability of a party to choose whether or not to continue negotiations seems to imply that the party could, at any time, withdraw from negotiations, including by not responding to an offer. Conduct of that kind would usually amount to a want of the good faith in the negotiations to which s 31(1)(b) refers. The circumstance that it is permitted in post-FADA negotiations points against these being negotiations to which s 36(2) refers. I mention, in this respect, that the appellants did not contend that there was any difference in the content of good faith negotiations for the purposes of s 31(1)(b) and s 35(3).

119    The construction for which the appellants contend also involves the prospect of improbable consequences. As counsel for Sheffield pointed out, it could mean that an arbitral body may be precluded from making a determination in the case of a Grantee Party who had, before making a FADA, negotiated in good faith only because that party’s subsequent conduct in negotiation had not been in good faith.

120    Fifthly, a requirement that the permitted negotiations occurring after the making of the FADA be in good faith within the meaning of s 36(2) has the potential to complicate the arbitral process. It would mean that an issue about a party’s good faith in negotiations could be raised at any time during the arbitral process (including after the arbitral body had reserved its decision) in respect of any negotiation conduct by a party, thereby giving rise to additional issues, and, in turn, to delay in the arbitral determination. This does not seem consistent with the emphasis which Subdiv P places on expedition in the arbitral process.

121    Related to that circumstance, is that a party’s awareness that things said or done (or perhaps not said or done) during continuing negotiations may be relied upon (whether meritoriously or otherwise) by a party contending that there had been a want of negotiation in good faith may operate as a disincentive to a Negotiating Party choosing to engage in further negotiation. That prospect does not seem consistent with the desirability of negotiated agreements which, as noted, is an important feature of Subdiv P.

122    Sixthly, the Parliament could so easily have stipulated that any negotiations occurring after the making of a FADA be in good faith, but did not do so. It would, for example, have been easy for s 35(3) to have prescribed that “even though the application has been made, the negotiating parties must continue to negotiate in accordance with s 31(1)(b)” or that “the negotiating parties may continue to negotiate with a view to reaching an agreement of the kind mentioned in s 31(1)(b) but, if they choose to do so, must negotiate in good faith”. The fact that the construction for which the appellants contend requires words of this kind to be read into s 35(3) counts against the correctness of that construction.

123    Finally, the course of decision-making in the Tribunal is consistent with the construction which I consider to be appropriate. Generally, the Tribunal has held that the obligation to negotiate in good faith ceases upon the making of the FADA and that evidence of a party’s conduct in negotiations thereafter is relevant only to the extent to which it may indicate whether or not the party negotiated in good faith before the making of the FADA: South Blackwater Coal Ltd v Queensland [2001] NNTTA 23, (2001) 165 FLR 232 at [11]; Cameron v Hoolihan [2005] NNTTA 84, (2005) 196 FLR 37 at [38] and Cox v Western Australia [2008] NNTTA 90, (2008) 219 FLR 72 at [19]. However, in one case, Pilbara Stone Ltd v Cox [2012] NNTTA 114 at [24]-[25], [35], the Tribunal member took a slightly different view, stating at [35] that the question should be dealt with on a “case by case basis”.

124    The appellants advanced some other contentions to which I have not yet referred. They submitted that the heading to s 31 “Normal Negotiation Procedure” is significant for present purposes. The submission, as I understood it, was that the heading was an indication that a normal obligation with respect to any negotiations was that they be conducted in good faith.

125    In my view, that submission involves a misunderstanding of the purpose of the heading. The counterpart to the “Normal Negotiation Procedure” for which s 31 provides is the expedited procedure for which s 32 provides. Quite apart from the implications arising from the juxtaposition of the two provisions in Subdiv P, it is also indicated by the clause with which s 31 commences, namely “unless the notice includes a statement that the Government party considers the act attracts the expedited procedure …”. On that basis, I do not consider that s 31 can be understood as stating what the legislature requires as “normal” in all negotiations.

126    Initially, counsel for the appellants sought to attach significance to s 25(2) of the NT Act. That section provides:

(2)    Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.

However, ultimately counsel acknowledged that s 25(2) did not add anything to the provisions in s 31. In my view, that concession was correct as s 25 is an overview provision, that is, providing an overview of the succeeding provisions.

127    Counsel for the appellants submitted that the provision in s 35(3) for the parties to “continue to negotiate” connoted implicitly the continuation of the negotiations required by s 31(1)(b) and subject to the same terms and conditions, including the obligation of good faith. I agree that that is a possible construction but do not regard it as appropriate. Instead, s 35(3) is an express statutory contemplation that the negotiating parties may keep on negotiating and that, in the event that the negotiations produce an agreement, it will have the effect of concluding the FADA. Had it been intended that the term “continue to negotiate” should have the effect for which the appellants contend, it is much more likely that the legislature would have added words like “in accordance with paragraph 31(1)(b)” immediately after that term. In my view, this Court should not read into s 35(3) words which the legislature has not itself chosen to use.

128    Some of the appellants’ submissions were based on the premise that negotiating parties have a choice about continuing negotiations after the expiration of the minimum six month period to which s 35(1) refers. In my view, that is not a correct understanding of the NT Act. The expiration of the six month period does not, of itself, have any effect on the duty of negotiating in good faith imposed by s 31(1)(b). Instead, it is the making of the FADA which brings about the change and that may occur at any time after the minimum period of six months has expired.

Conclusion of first issue

129    As noted earlier, the right to negotiate is an important element in the protection of native title rights and interests, and the provisions concerning it are not to be construed narrowly. Nevertheless, I consider, for the reasons given, that the construction adopted by the primary Judge is correct. This ground of appeal should fail.

130    I respectfully agree with the primary Judge that evidence of the negotiations occurring after the making of a FADA may in some cases be probative of whether a party was negotiating in good faith before the FADA was made. I also agree that it should be an ordinary expectation that parties will in fact negotiate in good faith. However, a failure by a party to do so after the making of a FADA does not require the arbitral body to refuse to make the determination.

Second issue: When a FADA is made

131    The second issue on the appeal concerns the time at which the obligation imposed by s 31(1)(b) concludes and at which continued negotiations become a matter of choice for the parties. It turns on when the application is “made” within the meaning of s 35(3).

132    The appellants contended that, when the arbitral body is the Tribunal, an application is “made” when it is accepted by the Tribunal (which in this case occurred on 1 November 2016). Sheffield contended that, at least in relation to the Tribunal, an application which conforms with the statutory requirements is made when it is given to the Registrar (which in this case was 24 October 2016).

133    The difference between the two dates is said to be significant because some of the conduct on which the appellants relied for their claim that Sheffield did not negotiate in good faith occurred in the period between 24 October and 1 November 2016.

134    It is not clear that this issue was raised before the primary Judge. It was not articulated as a separate ground of appeal from the Tribunal’s decision. In the submissions before the Judge, the appellants seemed to have raised the issue only as an incident to its submissions on the primary ground – see the reasons of the primary Judge at [57]. Further, the primary Judge did not deal with this matter as a discrete issue. Rather, his Honour seems to have determined the appeal on the assumed basis that an application is “made” when it is lodged at the Tribunal.

135    However, Sheffield did not submit that it was not open to the appellants to agitate this ground on the appeal to this Court.

136    The appellants’ submissions have their origins in ss 75 to 77 of the NT Act. Section 75 identifies in a table the applications which may be “made” to the Tribunal under Div 2 of Pt 3 and the persons who may “make” them. An application “as mentioned in section 35 for a determination in relation to a future act” is one such application and “a negotiation party” is identified as a person who may “make” the application. Sections 76 and 77 provide:

76 Material and fees to accompany applications

An application must:

(a)    be in the prescribed form; and

(b)    be given to the Registrar; and

(c)    contain such information in relation to the matters sought to be determined as is prescribed; and

(d)    be accompanied by any prescribed documents and any prescribed fee.

77 Action to be taken in relation to applications

If an application complies with section 76, the National Native Title Tribunal must accept the application.

Note:    The procedure to be followed in relation to these applications is set out in Subdivision P of Division 3 of Part 2.

137    As can be seen, s 76 provides for the manner and form in which an application is to be made. Section 77 obliges the Tribunal to “accept” the application if it complies with s 76. There is, accordingly, a two-step process. The Tribunal must make the decision whether to accept the application expeditiously as an incident of its compliance with the obligation imposed on it by s 36(1).

138    Sheffield’s submission was that the Tribunal’s acceptance of an application could occur only in relation to an application which had already been “made” to it. Initially, I was attracted to that construction.

139    However, in my opinion, a number of matters indicate that acceptance by the Tribunal is an essential integer in the making of the application. First, s 76 does not contemplate an application being made by some recognised step such as filing in the Tribunal. It contemplates something less formal, namely, the “giving” of the application to the Registrar of the Tribunal.

140    The first formal engagement of the Tribunal in the process occurs when it decides under s 77 whether to accept the application. In order to make that decision, the Tribunal must determine whether the application is a compliant application. The NT Act contemplates that the Tribunal will make this decision administratively, as it does not require that the application be served. Nor does it provide for any hearing at which the question of whether the application should be accepted could be agitated. No other step can occur until the application is accepted.

141    The NT Act does not identify any other consequence to the Tribunal’s acceptance of the application. This adds to the impression that acceptance, that is, the formal receiving of the application, is an aspect in the making of the application.

142    All these matters suggest to my mind that the Tribunal’s acceptance of the application is an essential step in the making of an application. That is to say, an application for the purposes of s 35(1) is made when an application complying with the requirements of s 76 is given to the Registrar and the Tribunal determines to accept it, as required by s 77.

Conclusion

143    Although the parties made submissions concerning the appropriate orders in the event that the appellants succeeded on the primary issue, they did not address the orders which would be appropriate in the circumstance that the appellants failed on the primary issue but succeeded on the second issue. In those circumstances, had my view about the appropriate disposition of the appeal prevailed, I would hear from the parties as to the orders which are appropriate to give effect to these reasons.

Associate:

Dated:    20 December 2017