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NATIONAL NATIVE TITLE TRIBUNAL
Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli
[2015] NNTTA 26 (16 July 2015)
Application No: WF2015/0003
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Rusa Resources (Australia) Pty Ltd (grantee party)
- and -
Sharon Crowe and Others on behalf of Gnulli (WC1997/028) (native title party)
- and -
The State of Western Australia (Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN
INQUIRY
Tribunal: Mr JR McNamara, Member
Place: Brisbane
Date: 16 July 2015
Catchwords: Native title – future act – s 35 application for a determination - petroleum
exploration permit application STP-EPA-0110 – jurisdiction – power – whether grantee party
has negotiated in good faith – grantee party has not negotiated in good faith – Tribunal does
not have power to proceed with future act determination inquiry.
Legislation: Petroleum and Geothermal Energy Resources Act 1967 (WA)
Native Title Act 1993 (Cth)
Cases: Bradford and Julie Young v Kariyarra and Another [2014]
NNTTA 103 (‘Young v Kariyarra’)
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd /Grace Smallwood &
Ors (Birri People)/Queensland, [2012] NNTTA 9 (‘Drake Coal v
Birri People’)
2
FMG Pilbara Pty Ltd v Cox and others (2009) 175 FCR 141;
[2009] FCAFC 49 (‘FMG Pilbara v Cox’)
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal
Corporation (2005) 196 FLR 52; [2005] NNTTA 88 (‘Gulliver v
Western Desert Lands Aboriginal Corporation’)
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163
FLR 87; [1999] NNTTA 361 (‘Placer v Western Australia’)
Rusa Resources (Australia) Pty Ltd v IS (deceased) and Others on
behalf of Wajarri Yamatji [2015] NNTTA 15 (‘Rusa Resources v
Wajarri Yamatji’)
Strickland v Minister for Lands for Western Australia [1998] FCA
868; (1998) 85 FCR 303; (1998) 100 LGERA 50 (‘Strickland v
Minister for Lands’)
Western Australia v Daniel (2002) 172 FLR 168; [2002] NNTTA
230 (‘Western Australia v Daniel’)
Western Australia v Dimer (2000) 163 FLR 426; [2000] NNTTA
290 (‘Western Australia v Dimer’)
Western Australia v Taylor (1996) 134 FLR 211; [1996] NNTTA
34 (‘Western Australia v Taylor’)
White Mining (NSW) Pty Ltd v Franks (2011) 257 FLR 205;
[2011] NNTTA 72 (‘White Mining v Franks’)
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors
(Karingbal #2);Brendan Wyman & Ors (Bidjara
People)/Queensland, [2012] NNTTA 93 (‘Xstrata Coal v Bidjara’)
Representative of the
grantee party: Mr Chas Lane, Consultant
Representatives of the Ms Maimbo Chilala and
native title party: Mr David Farrell, Yamatji Marlpa Aboriginal Corporation
Representatives of the Ms Maryie Platt, Department of Mines and Petroleum
Government party: Ms Sarah Power, State Solicitor’s Office
3
REASONS FOR DECISION
[1] The grantee party, Rusa Resources (Australia) Pty Ltd, has applied for petroleum
exploration permit STP-EPA-0110. The permit is located about eighty kilometres
south of Learmoth and mainly in the Shire of Carnarvon. It is extensive, comprising
some 7,500 square kilometres. The Government party, the State of Western Australia,
seeks to grant the proposed permit.
[2] The Gnulli native title application group assert they are the traditional owners of the
area according to their laws and customs. They have lodged their native title claim
application with the Federal Court of Australia and their claim has been successfully
registered under the Native Title Act. Its place on the Register of Native Title Claims
at this time gives Gnulli certain procedural rights including: the right to be a native
title party and negotiate in good faith with Rusa and the State with a view to reaching
an agreement about the grant of the permit.
[3] Should parties not be able to reach agreement about a grant, any party may apply for
the Tribunal to make a determination. The Tribunal has power to determine whether
or not the grant can be made, and if so, whether any conditions should be included.
However, if any party satisfies the Tribunal that the grantee or the State have not
negotiated in good faith, the Tribunal must not make a determination about the grant.
The parties must then recommence negotiations. It is possible to again apply for the
Tribunal to make a determination at a later date.
[4] In this matter, Rusa has applied for the Tribunal to make a determination about the
grant of the permit. I was appointed as Member to conduct the inquiry by the
President of the Tribunal, Raelene Webb QC. Gnulli assert that Rusa has not
negotiated in good faith and that therefore I am not entitled to make a determination
about the grant of the permit. I must decide: Has Rusa negotiated in good faith with
Gnulli?
[5] To answer the question, an inquiry has been held on the papers. Both Gnulli and Rusa
have provided written statements and evidence. The State did not seek to make any
submissions given there is no allegation about their conduct.
4
What is negotiation in good faith?
[6] Negotiation in good faith is not defined in the Native Title Act, however previous
Members of the Tribunal have sought to provide guidelines or indicia to assist.1
[7] One of these indicia is whether a party has done what a reasonable person would do in
the circumstances.2 Good faith requires the parties to act with honesty of intention and
sincerity, but this is not enough on its own. A party’s conduct might still be so
unreasonable that no one could say they were sincere or honest about reaching an
agreement.3 I am only required to make a decision about the conduct of a grantee or
Government party, although I might consider whether a lesser standard applies if a
native title party’s conduct was unreasonable.4
[8] Parties are not required to reach any particular stage of negotiations before applying
for the Tribunal to make a determination, but they cannot simply go through the
motions. The overall quality of their conduct must be assessed by considering what
they have done or failed to do during the negotiations.5
[9] Finally, the Tribunal is not a Court, so it is not bound by rules of evidence.
Nonetheless, a common sense approach means the party making the allegation about
good faith must provide material to support their case.6
What are the good faith issues in this matter?
[10] The contentions and evidence provided by Gnulli are extensive, as are Rusa’s
documents in reply. A list of key dates is provided at Appendix A, and a full list of
Gnulli’s and Rusa’s submissions is provided at Appendix B.
[11] I will address the following issues in determining whether or not Rusa negotiated in
good faith with Gnulli:
Were Rusa’s responses to Gnulli’s requests for information, sufficient,
1 Often descibed as the ‘Njamal Indicia’ (Western Australia v Taylor 224-255) and the ‘Dimer Obligations’
(Western Australia v Dimer) 2 Njamal indicium xvii (Western Australia v Taylor 224-255)
3 Placer v Western Australia at [30]
4 Xstrata Coal v Bidjara at [65], Placer v Western Australia at [30]
5 FMG Pilbara v Cox at [20] and [24]) and White Mining v Franks at [33]
6 Gulliver v Western Desert Lands Aboriginal Corporation at [10]
5
relevant and timely?
Was Rusa’s financial offer reasonable and realistic?
Did Rusa adopt a rigid, ‘take it or leave it’ approach to the financial offer once
it was made?
Did Mr Lane have authority to negotiate on behalf of Rusa?
Was Rusa’s position on funding the negotiations reasonable?
Did Rusa behave reasonably regarding the provision of draft agreements?
Did Rusa shift positions on the terms of an agreement?
Did Rusa have reasonable expectations about the length, cost and complexity
of negotiations?
Did Rusa allocate the financial and technical resources to meaningfully engage
in the negotiations?
Did Rusa act reasonably when they applied to the Tribunal for a
determination?
Considering Rusa’s overall conduct, does Rusa meet the threshold for good
faith?
Timeline of negotiations between Rusa and Gnulli
[12] The following is a brief timeline of key dates. For more details see Appendix A:
DATE EVENT
11 March 2014
(MC05)
Rusa lodged request for Tribunal mediation assistance
5 May 2014
(MC11)
First Tribunal mediation conference held
29 May 2014
(MC18)
First Gnulli working group meeting attended by Rusa
12 June 2014
(MC20)
Second Tribunal mediation conference held
6
11 June 2014
(MC19)
Gnulli forwards Rusa the YMAC Heritage Protocol and a request
for ‘a comprehensive draft exploration agreement’ with a list of
items for inclusion
12 June 2014
(MC21)
Rusa forwards Gnulli an initial written offer: List of ‘commitments
to the Gnulli People’
7 July 2014
(MC27)
Third Tribunal mediation conference held
15 October 2014
(DDF02)
Second Gnulli working group meeting attended by Rusa
31 October 2014
(DDF08)
Gnulli forwards a counter offer
2 November 2014
(DDF09)
Rusa forwards a response to Gnulli’s counter offer
3 November 2014
(DDF11)
Fourth Tribunal mediation conference held
9 December 2014
(DDF17)
Fifth Tribunal mediation conference held
19 December 2014
(DDF20, DDF29A)
Rusa forwards Gnulli a draft exploration agreement
11 February 2015
(DDF29)
Third Gnulli working group meeting attended by Rusa
16 February 2015
(DDF33)
Sixth and final Tribunal mediation conference held
17 February 2015 Rusa lodged application for a determination, Tribunal mediation
terminated by mediation Member.
Were Rusa’s responses to Gnulli’s requests for information, sufficient, relevant and
timely?
[13] Any consideration about the adequacy of Rusa’s responses to Gnulli’s requests for
information must be assessed against the resources available to each party, the
activities proposed by Rusa, and the effect those activities might have on Gnulli’s
rights and interests which have been registered as part of their claim application. I am
entitled to have regard to the resource constraints affecting Gnulli, their representative
body YMAC and to the financial and operational pressures on Rusa.7 Mr Lane, Rusa’s
representative in the negotiations and the present inquiry, held himself out as a person
with extensive knowledge and experience in petroleum exploration and production.
On the other hand, while Gnulli have been involved in negotiations with other
7 Rusa Resources v Wajarri Yamatji at [50] and Western Australia v Dimer at [106]).
7
petroleum exploration companies, it is not apparent that they have significant
expertise in this area.
[14] Gnulli contend that Rusa ‘failed to provide required sufficient and relevant
information’ about the permit within a reasonable time to allow them to assess the
impact on their claimed native title rights and interests. Specifically, Gnulli say they
requested information about the location of Rusa’s proposed work area; the location
of proposed seismic lines and potential drill sites; and where heritage surveys were
proposed. More generally, Gnulli say they raised, and asked Rusa to respond to their
environmental and heritage concerns, including how exploration methods such as
hydraulic fracturing might affect the lands and waters in the permit area (Gnulli
Contentions paras i-iv and 25).
[15] Gnulli’s information needs were first raised by Ms Chilala at the first mediation
conference convened by the Tribunal in early May 2014. Mr Lane advised the
proposed works were ‘no different to work generally carried out by petroleum
explorers’ and felt the project could be explained in the 30 minutes allocated to Rusa
at the first meeting with the Gnulli working group at the end of May. Ms Chilala
however ‘expressed her concerns that more time may be required for all the questions
that may be raised by the working group members to be answered and the proposed
project discussed’ (MC11). Prior to the first working group meeting, Ms Chilala sent
an email to Mr Lane outlining the kinds of information the working group required.
This included: heritage protection and the process for conducting heritage surveys;
environmental protection including water use on the project; employment and training
opportunities; cross-cultural awareness; financial compensation and contracting
opportunities. Ms Chilala also suggested Rusa prepare a presentation introducing the
project and the company (MC13).
[16] According to Ms Chilala, at their first meeting with Rusa the working group raised a
number of issues regarding Rusa’s proposal and discussed the impact of the project on
the land and waters in the permit area (MC Affidavit para 32). Mr Lane also delivered
a presentation on Rusa’s proposed exploration methods. No minutes of the meeting or
any other notes have been provided so I am not able to ascertain what issues were
discussed or to express a view about the adequacy of Mr Lane’s response/s. However,
Ms Chilala’s subsequent email confirming the outcomes of the meeting suggests that
8
the affect on water was discussed, as the working group had requested Rusa to include
in their proposal ‘Environmental Protection provisions including an outline of how
Rusa intends to responsibly manage water use on the project’(MC19). The adequacy
of the information provided by Rusa about their proposed activities was not raised
again until mid-January 2015, and this time by Mr Farrell, who had replaced Ms
Chilala in late September 2014. Mr Farrell asked Mr Lane to clarify whether the
proposed exploration and production methods would be conventional or
unconventional and invited him to make a presentation to the working group on the
proposed exploration methods at the third working group meeting (DDF21). Mr
Farrell later noted he had reviewed Mr Lane’s presentation to the working group and
YMAC’s minutes from the first meeting and found there was no record that Mr Lane
had discussed whether Rusa would be employing conventional or non-conventional
methods on the permit area (DDF25).
[17] Mr Lane’s response to this enquiry was that the proposed exploration methods were
‘conventional in their impact on the land and environment’, though it was ‘correct to
describe the potential resources as “unconventional” in that the exploration will be
assessing the potential for shale gas and oil’ (DDF22). Given the potential for
apprehension regarding hydraulic fracturing and these terms, Mr Lane’s response did
little to assist and possibly only further clouded the issue. However, YMAC’s notes
from the third working group meeting on 11 February 2015 indicate that Mr Lane did
address this issue with the working group and discussed the possible environmental
impacts of the proposed exploration and the statutory conditions placed on the permit
(DDF29). The adequacy of the information provided at this meeting was not raised in
subsequent correspondence.
[18] I agree that lack of information regarding the location of proposed works, particularly
the location of seismic lines and drill sites, may limit the capacity of a native title
party to evaluate how a permit might affect their registered native title rights and
interests. However, in his email to Ms Chilala on 17 February 2014, Mr Lane
indicated that no decision had yet been made about where seismic surveys would be
situated (Rusa Submission 3 at page 1). This position was consistent with; Rusa’s
work program, which contemplated geological, physical and environmental studies
and field mapping in the first two years of the permit (MC01); and with the relevant
9
policy applicable to the assessment of applications for petroleum acreage. The policy
provides that if ‘there is no current lead or prospect identified, there must be sufficient
phased seismic to enable a lead/prospect to be identified somewhere in the permit
area, and be brought to a drillable status’ (DDF34).
[19] Ms Chilala did make further enquiries about Rusa’s environmental policies, and Mr
Lane was able to provide examples of environmental plans developed by Rusa for
other works, as well as a general company environmental management plan (MC25).
However, Mr Lane specifically stated that the environmental management plan for the
permit would be ‘project specific’ and prepared in accordance with the relevant
planning process (MC23, Rusa Submission 1 at page 2). In the circumstances, there
was no plan which Rusa could provide, as the location of seismic lines had yet to be
determined. This aspect of the negotiations may have been improved if Mr Lane had
been more forthcoming in sharing his knowledge and experience with Gnulli, by
explaining the lack of exploration data in the permit area and the procedural steps
involved in the preparation of an environmental management plan. A more helpful
approach by Mr Lane might have given the parties an opportunity to discuss ways of
addressing Gnulli’s environmental and heritage concerns, even though the exploration
program had yet to be determined. However, I do not consider Rusa’s responses to
Gnulli’s requests for information exhibited a lack of good faith.
[20] Gnulli also contend that Rusa failed to provide an independent economic assessment
as requested (Gnulli Contentions para 24). The type of report envisioned by Gnulli
might have assisted the parties to determine what is reasonable and appropriate
compensation for the effect of Rusa’s project on Gnulli’s native title rights and
interests; for example, by comparing it with similar projects. However, what is
reasonable and appropriate compensation was ultimately a matter for negotiation
between Rusa and Gnulli. Rusa was obliged to consider Gnulli’s request to provide
funding for an independent assessment of the project, but was not obliged to provide
it. Although the proposal was raised by Gnulli in the initial stages of the negotiations,
it was not pursued in later discussions. In any event, it is apparent that Gnulli had
received offers from other petroleum companies regarding resource projects which
they apparently used to evaluate Rusa’s offers of compensation (DDF04).
[21] Gnulli submit Rusa is required to show ‘sufficient ongoing financial resources to
10
comply with its firm two year work plan commitment on the Tenement to then be
entitled to commence negotiations’ (Gnulli Contentions para 26). I note that the policy
guiding the assessment of applications for petroleum acreage provides that the
applicant must satisfy the Minister of their capacity to undertake their proposed work
program, having regard to the adequacy of the applicant’s financial resources and the
likelihood that they will continue to have sufficient resources to meet the
requirements of the proposed work program and other commitments (DDF34).
However, this requirement is part of the assessment of applications under the
Petroleum and Geothermal Energy Resources Act and is not a precondition to
commencing good faith negotiations under s 31 of the Native Title Act. There is no
authority for Gnulli’s submission and no evidence regarding the information provided
during the permit application process.
[22] Information about Rusa’s financial position may well have assisted Gnulli to evaluate
whether Rusa was capable of meeting commitments made during negotiations. This
information may also have assisted Gnulli to understand the constraints upon Rusa’s
negotiating position and the way their offers were formulated. In the case of public
and large proprietary companies, financial information will be publically available in
the form of annual reports. However, in the case of a small private company, this
information may not exist in a format which would enable another party to understand
the company’s financial position. A small private company is required to keep
financial records but is only obliged to prepare a financial report in certain
circumstances8.
[23] Rusa’s financial capacity was first raised during the fourth mediation conference
convened by the Tribunal on 3 November 2014, where Mr Farrell noted that ‘Gnulli
have some concerns regarding whether Rusa have sufficient financial resources to
undertake its work program as the offer it has made to Gnulli doesn’t appear to reflect
such a capacity’ (DDF11). Later the same day, Mr Lane telephoned Mr Farrell and,
according to the file note made by Mr Farrell, stated that Rusa ‘currently did not have
the resources to comply with the Work Program committed to if the tenement was
granted but would seek to raise the necessary capital when granted’ (DDF10). Gnulli
did not make any specific request for financial information until 17 November 2014,
8 see Corporations Act 2001 (Cth), Pt 2M
11
when Mr Farrell emailed Mr Lane and requested a copy of Rusa’s annual report and
accompanying financial statements (DDF14). In reply, Mr Lane stated that Rusa does
not prepare annual reports but said he had asked the directors to provide ‘a balance
sheet or similar’ (DDF15). This document was not provided until the third working
group meeting on 11 February 2015 (DDF31-32).
[24] The State’s letter of 11 December 2013 initiating negotiations, requested Rusa to
provide Gnulli with, among other things, their last annual report (MC01). In their
response to Gnulli, Rusa stated that, as a private company, they had no annual report
or similar prospectus and had ‘no other exploration or production assets at this time’
(MC02). Apart from this, Rusa’s financial position was not raised at the outset of
negotiations, although Mr Lane stated in an email to Mr Farrell on 19 December 2014
that Gnulli had ‘known of Rusa’s very limited financial capacity since early on in
these negotiations’ (DDF20). There is no indication that this was the case, though
Rusa’s initial financial offer may have put Mr Farrell on notice. Even so, it is
reasonable to assume that the extent to which Rusa’s financial capacity placed limits
on their participation in the negotiations and the commitments they were willing to
undertake, would not have been apparent to Gnulli until the balance sheet was
provided on 11 February 2015.
[25] The delay in providing the financial information was not in itself a breach of good
faith. Nevertheless, the fact that Rusa’s true financial position was not disclosed to
Gnulli at the outset did colour the negotiations that followed. If it had been disclosed
at an earlier stage, other options might have been put forward and explored. As it was,
the negotiations proceeded on the understanding that Rusa’s project would involve
significant financial resources to meet the costs of their $8.1 million exploration work
program. It was not until November 2014 that it became clear to Gnulli that Rusa
presently lacked those financial resources. Even then, it may not have been apparent
that Rusa did not have the means to make any immediate financial commitments to
Gnulli. In the circumstances, the failure to disclose this information early on may have
led Gnulli to believe that the type of arrangements they sought were capable of being
met by Rusa. Consequently, this had an adverse effect on the way the negotiations
were conducted and resulted in Gnulli expending resources they may not otherwise
have. However, I am not satisfied the delay in providing the information of itself
12
constituted a lack of good faith on the part of Rusa.
Was Rusa’s financial offer reasonable and realistic?
[26] As a general rule, good faith should not be determined on the basis of evaluating the
reasonableness of offers.9 There are two circumstances which might require departure
from this rule: first, where the offer is so manifestly and obviously unfair that any
reasonable person would regard it as a ‘sham’ or an ‘unrealistic’ offer; and second, if
independent material is produced which indicates that an offer is unfair or
unrealistic.10
[27] The initial offer made by Rusa to Gnulli is identical to the offer Rusa made to the
Wajarri Yamatji native title party in Rusa Resources v Wajarri Yamatji. That matter
involved another application to the Tribunal for a determination over Rusa’s other
petroleum exploration permit STP-EPA-0111, which overlapped the Wajarri Yamatji
native title claim area. Wajarri Yamatji contended that Rusa failed to negotiate in
good faith with them. They contended Rusa’s offer was a ‘sham’ and relied on the
fact that Rusa was proposing to expend $8.1 million on the project, as well as
evidence that Rusa had entered into an agreement with Tap Oil in relation to the
project. I concluded that the evidence did not justify departure from the general rule
that it is not for the Tribunal to assess the reasonableness of any offer (at [68]).
[28] There is evidence that Tap Oil formally terminated its agreement with Rusa on 23
February 2015 (DDF36), though it was apparently still in place for most of the
negotiations between Gnulli and Rusa. This arrangement appears to have involved a
‘farm-in option’ which Tap Oil could choose to exercise upon the grant of the permit,
thus becoming the permit’s operator and assuming all of Rusa’s contractual
obligations for the permit. As Mr Lane explained in his email to Mr Farrell on 19
November 2014, if Tap Oil chose not to exercise their ‘farm-in option’, Rusa would
have to find another way of raising the necessary funds (DDF15). It is clear in this
context that Rusa was operating under significant financial constraints.
[29] Gnulli rely on two factors to support their view that Rusa’s initial offer was
unrealistic: first, Mr Lane’s extensive experience in the oil and gas exploration
9 Rusa Resources v Wajarri Yamatji at [65]
10 Drake Coal v Birri People at [200]-[204]
13
industry and on his own account with native title negotiations; and second, that ‘it
was significantly lower that similar offers for similar future acts’ (Gnulli Contentions
para 28).
[30] On the first issue, it is apparent that Mr Lane is a person who has, and holds himself
out as having, experience with the oil and gas industry and native title negotiations
(Rusa Letter). Mr Lane concedes the initial offer ‘may have been lower than others’,
but says that other offers made to Gnulli ‘were not made known’ to Rusa, which
suggests he was unaware of the kinds of offers made by others in the industry. Mr
Lane states that ‘Rusa did not “expect” the NTP to accept its initial offer, though there
was a tiny chance that that might happen’ (Rusa Submission 3 page 4). This statement
suggests that either Rusa or Mr Lane knew the offer was comparatively low and
unlikely to be accepted.
[31] As to offers made to Gnulli by other petroleum companies, Gnulli rely on the
comparison table prepared by Ms Chilala and presented to the working group at the
second meeting in October 2014 (DDF04). This table contains a summary of the
compensation packages offered by two other petroleum companies. It is unnecessary
to discuss these packages in detail and it will suffice to note the packages are
significantly larger than Rusa’s initial offer. However, the table leaves out some
important matters. For example, it is difficult to tell whether the packages contained
in the table formed part of completed or in-principle agreements with those
companies, or simply reflected the current status of those negotiations. It is also not
clear whether the amounts were those initially offered by each company or were
reached as a result of negotiations with Gnulli. There is also a lack of information
about the nature of each company and whether the projects were comparable to
Rusa’s project, including the area covered by the projects and the number of permits
involved. As such, it is difficult to draw any comparisons between Rusa’s initial offer
and the compensation packages outlined in the table.
[32] Gnulli provided the table to Rusa during these proceedings, but chose not to provide it
at the time their counter offer was made. If it had been, it may have assisted in
explaining the basis for their counter offer. However by the same token, Rusa did not
explain the basis of their offers until these proceedings either: Mr Lane has since
explained that ‘Rusa did not offer large upfront cash payments, because it could not
14
afford them’ and that their offer was ‘carefully structured to tie the financial benefits
to the exploration projects. If there were insufficient funds for the projects, they
would not proceed and therefore would not trigger Rusa’s proposed terms’ (Rusa
Submission 3 page 6 and 7). In short, neither party was completely transparent about
how they arrived at their compensation offers until these proceedings.
[33] Rusa and Mr Lane were aware that the initial offer made to Gnulli was low, by Mr
Lane’s own admission and according to Gnulli’s representatives. However, I am not
satisfied on the material before me that the offer was so unreasonable or unrealistic
that it could not be regarded as a genuine offer.
Did Rusa adopt a rigid, ‘take it or leave it’ approach to the financial offer once it was
made?
[34] Gnulli argue that Rusa’s initial offer was not only low, but was also made on a rigid,
non-negotiable, ‘take-it-or-leave-it’ basis. Rusa refutes this argument, noting they did
increase their offer ‘significantly’. Indeed, the revised offer was more than double the
initial offer, though it was still significantly lower than Gnulli’s counter offer. Mr
Lane describes Gnulli’s counter offer as an ‘ambit claim’ and one that Gnulli would
have known was ‘unreasonable unrealistically high’ (Rusa Submission 3 at page 4).
[35] I do not accept Mr Lane’s characterisation of Gnulli’s counter offer. It was consistent
with the offers set out in the comparison table prepared by Ms Chilala and this leads
me to think that Gnulli saw their counter offer as reasonable. Mr Lane argues that no
explanation was provided as to what the amounts were for or how they were arrived
at. This was of course a matter for discussion during negotiation. The failure of the
parties to engage on these issues is explained in part by the events of the second
working group meeting on 15 October 2014. This will be discussed further below. I
also note that Rusa did not seek to explain the basis for their initial offer either. And,
their revised offer was, at least until the sixth and last mediation on 16 February 2015,
conditional on the negotiations being ‘fast-tracked’ (DDF33, Rusa Submission 3 at
page 4).
[36] The definition of ‘fast track’ appears to have been something of a moveable feast.
When it was suggested on 2 November 2014 that Rusa would consider increasing
their compensation offer ‘in return for some faster-tracking of this process’, Mr Lane
15
raised it in the context of the parties adopting an agreement previously entered into
between Gnulli and Empire Oil (DDF09). Although at the outset of the negotiations,
Mr Lane suggested that an existing agreement might serve as a ‘starting point’ for the
negotiations, Mr Lane’s email of 2 November suggests that what was now being
proposed was somewhat narrower in scope. Although Rusa had already said they
would ‘essentially accept’ the cultural heritage protocol proposed by Gnulli, Mr Lane
stated that adopting the Empire Oil agreement ‘would include any and all attachments
such as a cultural heritage protocol that we have already spent some time discussing.’
Mr Lane also intimated that ‘if Empire Oil was happy with their general terms, then
Rusa is likely to be as well.’ In this context, it is difficult to avoid the conclusion that
Rusa had already formed the opinion that the Empire Oil agreement would not require
much further negotiation under this ‘fast track’ process (DDF09).
[37] Gnulli had already outlined their position regarding the use of previous agreements
such as the Empire Oil agreement at the outset of the negotiations. During a phone
conversation with Ms Chilala in February 2014, Mr Lane ‘proposed that an agreement
similar to one negotiated between Gnulli and another company about 10 years ago
should suffice’. Ms Chilala had explained that ‘each negotiation was dependent on the
facts’ and Gnulli ‘did not consider an agreement from 10 years ago would be
appropriate in the circumstances’ (MC Affidavit para 11e). At the first working group
meeting in late May 2014, Mr Lane’s request to use the Empire Oil agreement was
rejected and he was again advised that ‘each negotiation had different considerations
depending on the facts’ (MC Affidavit paras 34-35). Mr Farrell repeated this view at
the fourth mediation conference on 3 November 2014, but agreed to provide Rusa
with a more current template agreement (DDF11). He later advised that YMAC did
not have a template for petroleum matters and that, back in May, the working group
had in fact requested Rusa to provide a draft agreement (DDF12). I accept that Mr
Farrell made a mistake by agreeing to provide a template, owing perhaps to the fact
that he had only been at YMAC since September. Nevertheless, Mr Lane agreed to
provide the draft agreement and did so on 19 December 2014 (DDF20). This draft
was based on a conjunctive agreement developed in South Australia in the early
2000s, adapted to remove any references to subsequent tenure. However, Mr Lane
reiterated that the increased compensation was being offered on the ‘fast track’
condition, ‘that is that the draft provided here forms the basis of our agreement in a
16
reasonable period of time.’
[38] Mr Lane continued to use the phrase ‘fast track’ in his negotiations with Gnulli. In an
email to Mr Farrell in preparation for the third working group meeting on 11 February
2015, Mr Lane notes that the ‘financial compensation I have offered is as set out in
the “fast track” deal of late last year’. Mr Lane also stipulates that the working group
‘needs to either accept my current offer on payments or propose something else on the
same scale’, though additional payments could be negotiated if Gnulli were to accept
a conjunctive agreement (DDF28). This statement suggests the offer was subject to
negotiation, although no explanation was given for what ‘on the same scale’ might
mean. In any event, Gnulli had made it clear at the first working group meeting in
May 2014 that they were not prepared to enter into a conjunctive agreement,
preferring ‘to progress negotiations for the Permit currently notified by the DMP’
(MC Affidavit para 35).
[39] Mr Lane presented the revised offer at the third working group meeting on 11
February 2015. In his submissions, he states that if Gnulli had accepted this offer as
presented ‘then we had a deal’, but notes that certain key members of the working
group were absent, and so they could not make any decisions or respond to Rusa’s
offer (Rusa Submission 2 at page 1). Gnulli do not deny this, though they say that
YMAC contacted the relevant members before the meeting and had no control over
their attendance. Nevertheless, Gnulli dispute that the parties could have finalised the
agreement at the meeting, as the other terms had yet to be negotiated or incorporated
into a draft agreement acceptable to both parties (Gnulli Reply at para 18). The
following evidence supports Gnulli’s argument.
[40] At the sixth mediation conference on 16 February 2015, the parties agreed to work
further on the draft agreement. Mr Farrell agreed to adopt Rusa’s draft and undertook
to incorporate the YMAC heritage protocol into that agreement. Mr Lane expressed
concern about the amount of work that would involve, but was ‘happy to proceed
along that path’ (DDF33). Mr Farrell also explained the revised financial offer would
need to go back to the working group and advised he ‘cannot say when another
working group meeting will be held as there needs to be sufficient non-proponent
claim business to warrant another government-funded meeting’. Nonetheless, he was
‘willing to continue working on the agreement to get it into a form acceptable to both
17
parties’ before that time. When asked by the mediator how this would affect Rusa’s
wish to ‘fast track’ the negotiations, Mr Lane replied that he ‘didn’t want to focus on
the term “fast-track” and asked that it no longer be used.’ Mr Lane and Mr Farrell
agreed to continue their negotiations until the next mediation meeting set for the end
of March. However the following day Rusa applied for the Tribunal to make a
determination.
[41] In conclusion, whilst Rusa did revise their initial compensation offer, it was made on
the basis of a condition to ‘fast track’ negotiations by using a previous agreement as a
template. This conditional form of negotiation placed Gnulli at a disadvantage and to
couch the offer in such a way risked good faith: Rusa’s ‘fast track’ position bordered
on being rigid and non-negotiable.11
Furthermore, it was poorly executed. When it
was made clear that the ten year old Empire Oil agreement was not a template
acceptable to Gnulli, Mr Lane was only able to locate a South Australian conjunctive
agreement from the early 2000’s as a substitute. By his own admission the agreement
wasn’t suitable in its current form as the task of incorporating the agreed YMAC
protocol into it ‘would not be possible without considerable re-writing to merge the
two’ (DDF20). Mr Lane’s skills were evidently limited to adapting existing
agreements, and so Rusa made the decision to abandon the YMAC heritage protocol
and offer the agreement ‘with its CH [cultural heritage] procedures’ instead. This
offer only confused the negotiations. At the last meditation meeting in February 2015,
no one disputed that Rusa’s draft agreement required substantial work ‘to get it into a
form acceptable to both parties’ and Mr Lane proposed that the term ‘fast track’ no
longer be used. This suggests a degree of awareness that it was no longer reasonable
for Rusa to adhere to the approach they had advocated as Mr Lane and Rusa were
unable to bring a suitable template agreement to the table and they didn’t have the
requisite drafting skills to develop one.
Did Mr Lane have authority to negotiate on behalf of Rusa?
[42] While there is no evidence Mr Lane communicated Gnulli’s counter offer to Rusa’s
directors, there is nothing to suggest he had limited authority to negotiate or that
particular matters were beyond the scope of his authority. Mr Lane states he did not
have authority to agree to a signature payment without reference to the directors, but
11
Njamal indicium xiv ‘Adopting a rigid non-negotiable position’ (Western Australia v Taylor 224-255)
18
did have authority to reject it. There were clearly limits on what Rusa was prepared to
negotiate about in terms of compensation and other financial benefits and Mr Lane
acted within those limits.
Was Rusa’s position on funding the negotiations reasonable?
[43] Gnulli contend Rusa ‘failed to contribute reasonable funding for the negotiations’ and
‘adopted an unreasonable, rigid, non-negotiable, “take it or leave it approach” in its
policy of not contributing any funding towards negotiation meetings’ (Gnulli
Contentions paras 32 and 37). They contend they: ‘accommodated the position of the
Grantee Party on negotiation funding’; made ‘repeated funding concessions’ and
‘absorbed’ the costs of Rusa’s attendance at three working group meetings; and that
such actions indicate they negotiated in good faith with Rusa (paras 32 and 47).
[44] In response, Mr Lane submits there is no requirement for a grantee party to contribute
towards a native title party’s expenses and if they were to contribute ‘then this is
entirely at the discretion of that Grantee Party’. He asserts that to ‘pay a legal
organisation such as YMAC to act against its interests is ludicrous’ and states that
Rusa ‘consistently offered to pay for its share of genuine shared outgoings such as
catering and venue hire’. He maintains that Rusa was not unreasonable in ‘declining
to pay for the GWG to attend meetings that they desired, and to pay for their
unfettered legal representation’. He asserts the meetings were ‘at the whim’ of Gnulli
and that Rusa ‘would have been happy to organise the meetings, if so asked’. He
states he ‘made three trips to Carnarvon for a total of 2.5 hours with the full GWG,
and an additional hour with the non-representative GWG on the third occasion’. He
also asserts that the ‘actual outgoings … of accommodating Rusa at these meetings
was nil’ and that Gnulli ‘has not produced any evidence to show that these
negotiations have cost them anything at all.’ (Rusa Submission 3 page 5-6, Rusa
Reply page 6).
[45] There is no automatic obligation on a grantee party to fund a native title party’s
participation in negotiations. However, the Tribunal may consider whether the
grantee’s position on funding meets the standard of negotiating behaviour expected of
them, by taking into account their financial resources and the nature of their proposed
19
works.12
[46] Rusa’s position on funding, which they maintained throughout the negotiations, was
that they would not pay for Gnulli’s meeting costs ‘over and above our share of the
venue of any catering expenses’ (MC07). This position was clearly informed by the
view that the proposed exploration was conventional in nature and would not require
extensive negotiations. No doubt it was also informed by the significant financial
constraints experienced by Rusa, and Mr Lane was hopeful that parties could
minimise the cost of negotiations by adopting a previous agreement as a template
document.
[47] Gnulli’s position on funding is summarised in Ms Chilala’s letter to Rusa in May
2014. In the letter, Ms Chilala explains that YMAC ‘receives a limited amount of
funding from the Department of Prime Minister and Cabinet … to assist the Gnulli to
progress their native title claim and to deal with matters arising from the claim.’ This
funding ‘allows YMAC to hold 2-3 working group meetings for Gnulli each year.’ As
the time at these meetings ‘is prioritized appropriately in order to progress the Gnulli
Claim and other claim related business’, there is ‘very limited time available to deal
with other matters, such as negotiations over large resource developments.’ Ms
Chilala informed Rusa that resource companies ‘ordinarily contribute to the costs of
meetings’, but in cases where a resource company does not contribute to funding the
meeting, ‘we try to facilitate that company’s attendance’, though she noted the time
would be limited and priority would be given to matters that had otherwise been
funded. Ms Chilala indicated that, in the absence of funding, Rusa ‘will have to rely
on the limited opportunities available’ at funded meetings. While these meetings
‘generally only take place only every 3-6 months’, funding from Rusa ‘would enable
YMAC to hold these meetings closer together’ (MC10).
[48] Consistent with that advice, Gnulli tried to accommodate Rusa’s position by
allocating time for Rusa to attend Government-funded meetings to progress the
negotiations. In spite of this, Mr Lane appears to have maintained the expectation that
Rusa would be allocated ‘substantial time’ at these meetings (MC27, DDF22). In the
circumstances, this was not a reasonable expectation, given the fact that Rusa was not
prepared to facilitate Gnulli’s participation in the negotiations.
12
Drake Coal v Birri People at [189]-[191].
20
[49] Mr Lane’s statement that working group meetings were ‘at the whim’ of Gnulli
discloses an underlying suggestion that his time is more valuable than theirs. Native
title is not a hobby. For traditional owners, negotiations involving their claimed native
title rights and interests are conducted by members of their community who are
chosen based on their status, knowledge, and qualifications. Those members who
carry that responsibility are regularly required to take time away from their work and
family commitments to meet with land users who seek petroleum or mineral tenure
over their native title claim. To trivialise that status, skill and responsibility is
regrettable.
[50] Mr Lane’s statement that ‘to pay a legal organisation such as YMAC to act against its
[Rusa’s] interests is ludicrous’ suggests that the interests of the Gnulli (for whom a
legal organisation such as YMAC act) are necessarily “against the interests” of Rusa.
If Mr Lane’s statement is intended as an attack on the professionalism of YMAC
(which is itself clearly inflammatory) and not the Gnulli, it nevertheless suggests that
Mr Lane predetermined an adversarial (as opposed to interest based) negotiating
environment. In those circumstances the chances of productive negotiations and a
good outcome would be the result of luck rather than design.
[51] Considering the extensive correspondence between the parties and the obvious
logistics involved in organising Mr Lane’s attendance at the working group meetings,
Rusa’s assertion that the ‘actual outgoings … of accommodating Rusa at these
meetings was nil’ is unreasonable (Rusa Submission 3 page 5). Although these costs
have not been quantified, it can be accepted that time spent on negotiations with Rusa,
whether during the meetings or otherwise, was time that could otherwise be spent on
other matters. In this respect, Gnulli made significant concessions on the funding of
negotiation meetings. However, that does not mean that Rusa was required to make
similar concessions. Rusa’s position on funding, is not on its own, evidence of
unreasonable behaviour amounting to a lack of good faith.
Did Rusa behave reasonably regarding the provision of draft agreements?
[52] As noted above at [37], Ms Chilala clearly outlined Gnulli’s position regarding the
use of template agreements such as the Empire Oil agreement at the outset of
negotiations in February 2014, and again at the first working group meeting in late
21
May. At the meeting, Ms Chilala advised each negotiation ‘had different
considerations depending on the facts’ and agreements negotiated by Gnulli ‘are
confidential and should not be disclosed to third parties’ (MC Affidavit para 35).
Instead, Gnulli proposed that they would provide a template heritage protocol, and
requested Rusa to provide ‘a comprehensive draft exploration agreement’ covering a
range of specific issues raised by the working group (MC Affidavit para 37, MC19).
There is no evidence which causes me to question Rusa’s agreement to this proposal:
In her affidavit Ms Chilala states Gnulli’s request was conveyed to Mr Lane at the
meeting (37) and ‘agreed’ to (39); Mr Lane emailed the Tribunal stating the meeting
was ‘brief but productive’ (MC18); the outcomes of the meeting were emailed by Ms
Chilala on 11 June 2014 (MC19); and Mr Lane responded to the outcomes the
following day (MC21).
[53] Following the appointment of Mr Farrell as Gnulli’s legal officer in September 2014,
Mr Lane again proposed using the ‘most recent’ Empire Oil agreement including any
and all attachments ‘such as a cultural heritage protocol’. The proposal was raised via
email to Mr Farrell on 2 November 2014 and at the fourth mediation meeting the
following day, at which he was again advised that the proposal was not acceptable to
Gnulli (DDF09, DDF11). Mr Lane’s proposal was raised in the context that Rusa
‘would be willing to increase its offer of financial compensation if Gnulli could fast-
track the negotiation process by using an agreement reached with another proponent,
such as the agreement between Gnulli and Empire Oil & Gas NL, as a template.’ Mr
Farrell advised ‘the Empire Oil agreement is ten years old and the YMAC template
agreements have evolved since then due to the benefit of experience with other
agreements’. Mr Farrell undertook to provide a draft YMAC template which might be
acceptable to Gnulli.
[54] At the same mediation, both the mediator and the State queried the viability of Mr
Lane’s proposal. The mediator ‘pointed out that it may be difficult to import an
existing agreement made with another grantee party as the current parties would be
missing the historical/relationship context in which that agreement was made’. The
State representative ‘advised that each application area is bespoke and it is important
for parties to look at each future act in its context. She urged the parties to work out
the issues, particularly in relation to land access, prior to grant... [and] emphasised the
22
need for good working relationships between parties’. Despite this, Mr Lane
maintained that ‘the offer to increase compensation is tied to the parties using a
template agreement previously signed by a proponent’ (DDF11).
[55] Shortly after the mediation meeting, a telephone conversation took place between Mr
Lane and Mr Farrell. Mr Farrell’s notes of the conversation indicate that Mr Lane
‘raised the issues of the supply of a template Pet and Gas Exploration Agreement and
stated that it should have been supplied in February’ (DDF10). In his submissions, Mr
Lane does not dispute that a discussion concerning templates occurred, but states
‘using the word “could” instead of “should” is an interpretation I would agree with’
(Rusa Submission 2 page 1).
[56] On 7 November 2014, Mr Farrell advised that following ‘conversations with
colleagues since [the fourth mediation meeting on 3 November], it has become
apparent that there is no appropriate YMAC agreement available specifically for
petroleum and gas exploration’. As noted previously, I accept that Mr Farrell made a
mistake by agreeing to provide a template, owing perhaps to the fact that he was only
recently employed at YMAC. He also advised he had reviewed the file and
‘discovered’ that, at the first working group meeting in May 2014, Gnulli had
requested that Rusa ‘provide the agreement’ (DDF12). Mr Lane did not dispute that
the request had been made. Rather, he replied:
I misread or misunderstood the request for me to provide a draft exploration agreement. It
has always been my experience that the NT Party has a template it prefers, and this is
usually based on the most recent agreement it has done which is why I have been asking
YMAC/Gnulli for one, since early this year [DDF13].
[57] It seems improbable to me that Mr Lane had ‘misread or misunderstood the request’
to provide a draft agreement. The request, along with a list of points for inclusion, was
unambiguously conveyed to him both at the 26 May 2014 meeting with the working
group (MC Affidavit para 37) and in writing on 11 June 2014 (MC19). Furthermore,
in his response email the following day, Mr Lane copied Gnulli’s request in its
entirety and pasted it into the email. Below this, he outlined the list of ‘commitments’
which specifically addressed each of the points listed by Gnulli and also included an
additional statement regarding a possible conjunctive agreement (MC21). Rather than
a ‘misunderstanding’, it would appear that Mr Lane considered Rusa’s list of
‘commitments’ was a sufficient response to the request. Furthermore, in reading Mr
23
Lane’s reply to Mr Farrell’s email of 7 November, and considering the circumstances
before, during and after the fourth mediation meeting, it is difficult not to conclude
that Mr Lane sought to take advantage of Mr Farrell’s recent engagement as Gnulli’s
representative to yet again propose the use of the Empire Oil agreement, and failing
that, to seek another previously negotiated or template agreement from Gnulli.
[58] Although Gnulli again rejected the proposal to adopt a previously negotiated
agreement, Mr Lane continued to maintain at the fifth mediation meeting on 8
December 2014 that, ‘as parties are fast-tracking the matter, he is able to increase
Rusa’s [financial] offer’ (DDF17). The revised offer was not provided until 19
December, in an email to Mr Farrell enclosing a draft agreement based on a
conjunctive South Australian petroleum agreement. On this occasion, it was made
clear that ‘the increased compensation payments are offered on the “fast-track”
condition, that is that the draft provided here forms the basis of our agreement in a
reasonable period of time’ (DDF20). As stated previously at [41], this conditional
form of negotiation risked good faith.
Did Rusa shift positions on the terms of an agreement?
[59] As agreed at the first working group meeting in May, Gnulli provided Rusa with a
draft heritage protocol to use as a template document (MC19). Mr Lane also
forwarded a list of ‘commitments to the Gnulli People... in respect of a s31
agreement’ offer to Gnulli (MC21). At the second mediation meeting on 12 June
2014, Mr Lane undertook to review the heritage protocol, noting some initial concerns
with the document (MC20). The following day, Mr Lane emailed Ms Chilala asking
to use the heritage protocol as a basis for agreements with other native title parties
represented by YMAC (MC22). Gnulli contend this request was unreasonable. I do
not find anything objectionable about this request, though it does suggest that Rusa
regarded the protocol as generally acceptable.
[60] Over the following month, the heritage protocol was discussed and comments
exchanged (MC Affidavit para 43, MC23, MC26). At the third mediation meeting on
7 July 2014, Mr Lane advised that Rusa ‘will essentially accept the heritage protocol
to expedite the resolution of the matter’ (MC27). Despite Rusa’s statement that it
would ‘essentially accept’ the protocol, it was the only matter of substance discussed
24
at the second meeting with the Gnulli working group on 15 October 2014. Mr Lane
did not discuss Rusa’s ‘list of commitments’ at the meeting, even though he was
aware there were limited occasions for consultation given Rusa’s position on funding.
Mr Lane maintains the heritage protocol was raised for discussion by the working
group; however, the weight of evidence suggests it was Mr Lane who requested that
negotiations commence with the heritage protocol.
[61] Although the working group was unable to discuss Rusa’s ‘list of commitments’ with
Mr Lane at the second working group meeting in October 2014, they nevertheless
formulated a compensation counter offer and instructed Mr Farrell to present the
counter offer to Rusa. In the absence of a discussion with Mr Lane about the list of
‘commitments’, the financial component was the only aspect that Gnulli could
meaningfully attempt to progress at that time. When the counter offer was
communicated to Mr Lane on 2 November, he declined to engage with Gnulli on the
counter offer stating ‘Rusa will not be paying any of those items or amounts you have
listed below, beyond what was offered previously’. He then indicated that ‘Rusa
would consider increasing these’ if Gnulli agreed to ‘fast track’ negotiations by using
the most recent Empire Oil agreement as a template. Mr Lane made it clear ‘this
would include any and all attachments such as a cultural heritage protocol that we
have already spent some time discussing’ (DDF09).
[62] The fourth mediation meeting was held the following day at which Gnulli again
declined Rusa’s proposal to use the Empire Oil agreement including attachments as a
template. The Tribunal’s synopsis and outcomes document notes:
Mr Farrell indicated that Gnulli had been focussed on negotiating the [YMAC] heritage
protocol at Rusa’s request, and that the draft heritage protocol they had been working on so
far can be included in the draft petroleum agreement as a schedule. Mr Farrell advised that
further negotiations relating to the heritage protocol had taken place at the Gnulli working
group and so the protocol as currently drafted does not necessarily reflect the most up to
date positions of the parties. Mr Lane and Mr Farrell agreed to start from scratch and go
back to the original heritage protocol template. [DDF11]
[63] Despite stating that Rusa ‘can live with most things’ in the YMAC heritage protocol,
when Rusa provided their own draft agreement in December 2014, the agreement
included its own cultural heritage procedures. Mr Lane says he eventually accepted
the YMAC heritage protocol at the 11 February 2015 mediation meeting and Mr
Farrell then undertook to incorporate the heritage protocol into Rusa’s draft agreement
25
(Rusa Submission 2 page 1). These shifts in position not only had the effect of
frustrating the progress of negotiations, but they also meant the parties had little
opportunity to engage on other aspects of a possible agreement.
Did Rusa have reasonable expectations about the length, cost and complexity of
negotiations?
[64] Gnulli contend Rusa held ‘unreasonable and unrealistic expectations of
administrative, logistical and legal assistance in relation to the negotiations’. With
reference to Njamal indicium xvii13
, they contend Rusa ‘unreasonably and knowingly
placed the burden of cost for the negotiations’ on Gnulli including ‘the organising and
conduct of negotiation meetings at its own cost’, and providing ‘templates and draft
agreements’ at their cost (Gnulli Contentions paras 41-42, 34 and 35 respectively).
[65] Mr Lane submits Njamal indicium xvii ‘cannot apply in this circumstance, as what
might be considered reasonable for a company such as Woodside to do is not the same
as for an individual person or persons, such as the director/shareholders of a private
company’ like itself. He submits Rusa’s directors/shareholders ‘would have to draw
on personal assets’ in order to pay the meeting costs. Of course, in the absence of
specific funding to discuss a project such as Rusa’s, it would be for Gnulli to meet
that cost by; extending meetings convened for other purposes; convening special
meetings; or discussing the project at the expense of other business.
[66] Mr Lane asserts that Rusa did not ‘expect’ Gnulli to provide drafts, but ‘did think it a
reasonable way forward’ and that ‘it is normal’ for a native title party to do so. He
submits that, according to the petroleum permit map of Western Australia, it is likely
that Gnulli have held s 31 negotiations for seven exploration permit applications
resulting in ‘at least seven agreements’ and it ‘is not credible that each of these
agreements is written from a blank piece of paper.’ He asserts that it was Rusa who
provided the draft ancillary agreement and that the only draft provided by Gnulli was
a heritage protocol designed for a mining rather than petroleum project. He asserts
there ‘is no evidence presented that the provision of drafts by the NTP cost the NTP
anything’ and later states ‘I challenge the NTP to declare what it has actually spent on
these negotiations’ (Rusa Submission 3 page 6-8).
13
Failure to do what a reasonable person would do in the circumstances (Western Australia v Taylor 224-255)
26
[67] From the very outset of negotiations, Mr Lane and Rusa clearly operated on the
expectation that negotiations with Gnulli would be ‘simple’ because their proposed
program was ‘conventional in scope’ and ‘no different to the work generally carried
out by petroleum explorers’ (MC Affidavit para 11e, MC04 and MC11). An intrinsic
part of this expectation was Rusa’s repeated attempts to use an existing agreement as
a template, which may have also been motivated by Rusa’s limited financial means. It
is apparent from the material before me that Mr Lane had a specific agreement in
mind, namely that between Gnulli and Empire Oil (MC Affidavit paras 11e and 34-
35, MC14, DDF09, DDF11). It would also seem likely that Mr Lane either possessed
or had access to a copy of that agreement, or at least was familiar with its terms
(MC07, DDF09, DDF11). Although the proposal was first presented in terms of using
an existing agreement or template as an ‘initial model’ upon which to negotiate an
agreement, Rusa was evidently operating on the assumption that a template would
avoid the need for ‘numerous Working Group or community meetings’ (MC04) and
‘minimise the cost and inconvenience to the NT parties in reaching agreement’ (Rusa
Submission 1 page 1). This statement seems to acknowledge the costs native title
parties bear in negotiations, and in this light, it is difficult to accept Mr Lane’s
assertions that Gnulli’s participation in negotiations could have been at little cost to
them: the parties did not reach agreement concerning a template and the negotiations
did not proceed in the straightforward manner initially anticipated by Rusa (Rusa
Submission 3 pages 5 and 8).
[68] By contrast, it is clear from the evidence that substantial resources were employed by
Gnulli. Ms Chilala spent considerable time negotiating the terms of the heritage
protocol with Mr Lane and it formed a substantial part of discussions at the second
working group meeting on 15 October 2014. Mr Lane also acknowledges that at the
sixth mediation on 16 February 2015, Mr Farrell agreed ‘to take on the task of
blending the accepted heritage protocol into the draft template I had provided, despite
my reservations that this would be an onerous and complicated task’ (Rusa
Submission 3 page 6-8). Mr Lane himself had previously declined to undertake the
task because ‘it would not be possible without considerable re-writing of the two’,
preferring instead to use the heritage procedures in the draft template in order to ‘fast-
track the process’ (DDF20).
27
[69] As discussed above, Rusa’s limited financial means influenced their position on
funding and compensation, but it also seems to have informed Rusa’s decision to
insist on adopting a previous agreement, and their subsequent ‘fast track’ proposal.
Motivated by costs and a view that negotiations would be ‘simple’ because their work
program was ‘conventional’, Rusa’s strategy was not to provide resources towards
meetings and drafting, and to push for a template agreement in an attempt to minimise
costs. From the outset, Rusa attempted to direct an approach that underestimated the
complexity of negotiations, especially regarding the development of a workable
agreement. When Mr Lane attempted to adapt a South Australian conjunctive
agreement to fit, it should have been clear to Rusa that there was no ‘off the shelf’
agreement to suit the particular circumstances and that their approach was poorly
conceived. It was obvious at this point that Rusa’s flawed plan had failed and not
because of any unwillingness on the part of Gnulli. They still endeavoured to work
with Rusa’s chosen approach: At the last mediation meeting on 16 February, Mr Lane
and Mr Farrell agreed that Mr Farrell would undertake the task of ‘building the
YMAC heritage protocol into Rusa’s draft exploration agreement’ (DDF33). The
following day, Rusa lodged their application for a determination. Mr Lane stated:
I have submitted a request for determination to the NNTT. It has become clear from the
recent mediation session that reaching an agreement with the Gnulli will not happen in the
foreseeable future. [DDF39]
Did Rusa allocate the financial and technical resources to meaningfully engage in the
negotiations?
[70] The person seeking the benefit should contribute resources towards achieving the
agreement of another party. The appropriate level of resources is of course measured
against the potential benefit, which in this matter is a petroleum exploration program
in excess of $8 million. Mr Lane states he is experienced in native title negotiations,
however his capability for drafting an appropriate agreement is not apparent. It is
evident that the work required some expertise which Mr Lane did not possess. Instead,
at the last mediation meeting, Mr Farrell agreed to undertake the task of incorporating
the agreed heritage protocol into the template agreement provided by Mr Lane.
[71] Although I make no finding as to whether Rusa had sufficient financial resources to
commence negotiations with Gnulli (see [21] above), the issue is relevant to Rusa’s
conduct during the negotiations. Rusa’s limited financial means clearly influenced
28
their position on funding, compensation, template agreements and their subsequent
‘fast track’ proposal. As I noted above, the only reasonable interpretation of the ‘fast
track’ condition was that the increased compensation would only be made if Gnulli
agreed to narrow the scope for further negotiation and expedite the grant of the
permit.
[72] In Rusa’s submissions, Mr Lane sought to represent the proposal as a quid pro quo or
‘giving something in return for something back’: the increase in the financial terms
was offered in exchange for Gnulli ‘accelerating’ the process of drafting an agreement
by using a prior agreement as a template (see Rusa Submission 3 page 5). Mr Lane’s
characterisation is merely a gloss on the fact that, as a consequence of the limited
resources available to Rusa, there was a real prospect of further delay and expense in
obtaining the grant of the permit. More resources were required from Rusa at this
point, not less. If Rusa was not prepared or able to employ the appropriate resources
to progress the agreement, it should have allowed further time for Gnulli to use theirs.
Did Rusa act reasonably when they applied to the Tribunal for a determination?
[73] There is no requirement for negotiations to have reached a certain stage before an
application is made. Any party has the right to make an application and it cannot be
relied on to establish a lack of good faith.14
[74] A party simply adopting a negotiating position cannot form the basis of a finding that
they have not negotiated in good faith, unless the position is the product of improper
motives or is so unreasonable that it indicates they are not sincere in their desire to
reach agreement.15
[75] Mr Lane submits that, had the appropriate people attended the third working group
meeting on 11 February 2015 and had Gnulli accepted Rusa’s offer as presented, then
they could have ‘had a deal’ (Rusa Submission 2 page 2). I do not believe this would
have been likely. A variety of matters had yet to be negotiated between the parties or
apparently even discussed between the representatives, notably, the ‘list of
commitments’ proposed by Rusa which had simply been pasted into Rusa’s
agreement without further consideration of any of its terms. Further, the heritage
14
See Strickland v Western Australia at 322; FMG Pilbara v Cox at [23]). 15
See Western Australia v Daniel at [47]).
29
provisions had yet to be fully agreed or integrated into Rusa’s agreement. Though it
was unfortunate the 11 February meeting was in some respects a wasted opportunity,
even if the full working group had been in attendance, it was overly optimistic to
expect that an agreement could have been possible at that point in time.
[76] In considering whether Rusa acted reasonably when it applied for a Tribunal
determination, I will compare the circumstances of this matter against that described
in Young v Kariyarra at [45]-[68]. In Young v Kariyarra, the Kariyarra claimed the
Youngs’ applications for a Tribunal determination was unreasonable. During those
negotiations, the Youngs expressed an intention to meet with the Kariyarra working
group, but like Rusa, they declined to contribute towards the costs of a working group
meeting. Nonetheless, they attempted to progress negotiations by forwarding
comprehensive draft agreements which endeavoured to address all aspects that the
Youngs believed were of issue for Kariyarra. The agreements were fully drafted
documents capable of being signed (at [35]) and enabled Kariyarra to provide detailed
counter offers, although ultimately the Kariyarra did not respond to the Youngs’ last
counter offer (at [57]). Furthermore, no meeting date was ever offered by Kariyarra
during the six months of Tribunal assisted mediation, the Kariyarra representative
may not have been clear about meeting times or instructions taken and also,
Kariyarra’s decision making process was complex. The Youngs contended that if they
‘had not lodged each S35 Application, it is unclear how quickly negotiations might
have otherwise progressed’ (at [60]). The Tribunal found the Youngs’ position was
reasonable in the circumstances.
[77] Mr Lane submits that Gnulli ‘has shown itself to be unreliable, in that it was not
properly constituted at the 12 February GWG meeting, and that it [Rusa] could not
forsee when it would next be able to continue negotiations.’ He concludes ‘it was
apparent to Rusa that the NTP’s interest in this matter was insufficient to progress
negotiations in a timely fashion... As negotiations had been on foot for over 12
months, and with only a part of the negotiation issues being settled, Rusa could no
longer wait indefinitely for an agreement to be signed’ (Rusa Submission 3 page 9
and 11).
[78] Mr Lane’s statements are not supported by the evidence. There is no evidence that
Gnulli or their representatives were in any way disinterested or unaccommodating
30
during the negotiations. There was no agreement on the table capable of being signed
by Gnulli at the time Rusa lodged its application for a Tribunal determination.
[79] The evidence discloses that Gnulli accommodated Rusa at each of their working
group meetings, negotiated over the agreed YMAC heritage protocol in a timely
manner, and were transparent about instructions given and the nature of their decision
making process.
[80] The evidence also discloses that Rusa delayed in providing a draft agreement, despite
agreeing to do so at the first working group meeting in late May 2014. Rusa’s draft
was not provided until late December 2014, some seven months later, and was not in a
suitable form. It was Gnulli who, at the last mediation meeting were prepared to
provide the requisite drafting skills to progress an agreement. The circumstances are
clearly different to Young v Kariyarra. In this context, Rusa’s decision to apply for a
determination was not reasonable.
Considering Rusa’s overall conduct, does Rusa meet the threshold for good faith?
[81] At [25] I concluded that Rusa’s delay in disclosing its true financial position was not
in itself a breach of good faith. However, it did colour the negotiations that followed
because these proceeded on the understanding that Rusa’s project would involve
significant financial resources. If their position had been disclosed at an earlier stage,
other options might have been put forward by Gnulli and explored. It also resulted in
the Gnulli expending more resources than they might have otherwise spent.
[82] At [41] I concluded that Rusa risked good faith when it attempted to control the
negotiations by introducing the ‘fast track’ proposal. Rusa’s increased offer was
conditional upon using a South Australian agreement modified by Mr Lane whose
drafting skills were limited. I concluded that the ‘fast track’ plan was poorly designed
and executed by Rusa and was abandoned by Mr Lane at the last mediation meeting.
It was clear the agreement required substantial reworking. Rather than bring the
requisite skills or allow Gnulli the time to redraft, Rusa made an application for a
determination the next day.
[83] At [48]-[51], I concluded that Rusa’s position on contributing financially to Gnulli
working group meetings was not, on its own, a lack of good faith. However, I noted
31
that Mr Lane had an unreasonable expectation that Rusa would be given substantial
time at these meetings despite not contributing and held an unreasonable view that the
costs of accommodating Rusa were ‘nil’. I also observed that Mr Lane displayed a
regrettable attitude towards the time the Gnulli working group members spend
negotiating with land users such as Rusa, and towards the skill and responsibility their
attendance entails.
[84] At [57], I concluded Mr Lane’s ‘misunderstanding’ of Gnulli’s request for Rusa to
provide a draft agreement seemed improbable. Instead, I decided it was more likely
that he sought to take advantage of Mr Farrell’s inexperience at YMAC to again
pursue Rusa’s preference for a template agreement.
[85] At [58] I again observed that Rusa risked good faith when they provided a draft
agreement with an offer that was conditional upon Gnulli ‘fast tracking’ negotiations.
At [63] I concluded that Rusa shifted positions regarding the use of the YMAC
heritage protocol and that these shifts frustrated the negotiations and meant that
parties had little opportunity to engage in other aspects of an agreement.
[86] At [69] I observed that Rusa pursued a strategy which declined contributing towards
the costs of negotiations, both in terms of meetings and the drafting of an agreement
that would be acceptable to both parties. Financial constraints, a belief their project
was ‘simple’, and Mr Lane’s lack of drafting expertise meant Rusa directed the
negotiations towards template agreements, but ultimately Rusa underestimated the
complexity of the negotiations. The point at which Mr Lane attempted to adapt a
South Australian conjunctive agreement was the point at which it should have been
clear to Rusa that there was no ‘off the shelf’ agreement to suit and that their strategy
had failed.
[87] At [72] I concluded that at this point, more resources were required from Rusa to
progress the agreement, not less and, if Rusa was not prepared or able to employ
these, they should have allowed further time for Gnulli to use theirs. Instead, they
applied for the Tribunal to make a determination the following day. At [77] I
considered the circumstances and decided it was unreasonable for Rusa to do so.
[88] Overall, Rusa’s conduct does not meet the threshold for good faith.
32
Determination
[89] I am not satisfied that Rusa Resources (Australia) Pty Ltd negotiated in the manner
required by s 31(1)(b) of the Native Title Act. Therefore the Tribunal is not
empowered to deal with the application and the application is dismissed under s
148(a).
James McNamara
Member
16 July 2015
33
APPENDIX A – BACKGROUND TO NEGOTIATIONS
Based on the evidence submitted by the parties and Tribunal records, I accept the following
occurred up to the day on which Rusa made their application for the Tribunal to make a
determination:
DATE EVENT
14 April 1997 Gnulli native title claim application WC1997/1998 registered on the
National Native Title Tribunal Register of Native Title Claims.
4 December 2013 s 29 notification day for STP-EPA-0110 by Government Party, the
Department of Mines and Petroleum (DMP).
11 December 2013
(MC01)
DMP initial negotiation letter to Rusa and Gnulli.
23 December 2013
(MC02)
Rusa initial negotiation letter and submissions to DMP and Gnulli in
relation to the proposed permit.
12 February 2014
(MC03)
Gnulli submissions to DMP and Rusa in relation to the proposed
permit.
25 February 2014
(MC04)
Rusa reply letter to Gnulli and DMP.
11 March 2014
(MC05)
Rusa lodged request for Tribunal mediation assistance.
5 May 2014
(MC11)
First Tribunal mediation conference held.
29 May 2014
(MC18)
First Gnulli working group meeting attended by Rusa.
11 June 2014
(MC19)
Gnulli forwards Rusa a request for ‘a comprehensive draft
exploration agreement’ with a list of items for inclusion and a
‘YMAC precedent Heritage Protocol that is normally attached to
any ancillary agreement.’
12 June 2014
(MC20)
Second Tribunal mediation conference held.
12 June 2014
(MC21)
Rusa forwards Gnulli an initial written offer in response to Gnulli’s
11 June 2014 request.
7 July 2014
(MC27)
Third Tribunal mediation conference held.
14 July 2014
(MC28)
Rusa forwards comments on YMAC Heritage Protocol
15 October 2014
(DDF02)
Second Gnulli working group meeting attended by Rusa.
31 October 2014
(DDF08)
Gnulli forwards a counter offer to the financial benefits offered by
Rusa on 12 June 2014.
2 November 2014
(DDF09)
Rusa forwards a response to the Gnulli counter offer.
34
3 November 2014
(DDF11)
Fourth Tribunal mediation conference held.
7 November 2014
(DDF12)
Gnulli repeats 11 June 2014 request to Rusa for a draft exploration
agreement.
9 December 2014
(DDF17)
Fifth Tribunal mediation conference held.
19 December 2014
(DDF20, DDF29A)
Rusa forwards Gnulli a draft exploration agreement.
11 February 2015
(DDF29)
Third Gnulli working group meeting attended by Rusa.
16 February 2015
(DDF33)
Sixth and final Tribunal mediation conference held.
17 February 2015 Rusa lodged application for a determination, Tribunal mediation
terminated by mediation Member.
35
APPENDIX B – LIST OF DOCUMENTS PROVIDED BY GNULLI AND RUSA FOR
THIS GOOD FAITH INQUIRY
Gnulli Submissions
Gnulli
Contentions
‘Submissions in support of the Native Title Party’s contention that the Grantee
Party has not negotiated in good faith in relation to the grant of petroleum
exploration permit STP-EPA-0110’ dated 14 April 2015
MC
Affidavit
Affidavit of Maimbo Chilala sworn 14 April 2015 and attachments MC01-26
DDF
Affidavit
Affidavit of David Denis Farrell sworn 13 April 2015 and attachments DDF01-
41
Gnulli
Reply
Submissions by David Denis Farrell in reply to the Grantee Party’s contentions
that the Grantee Party has negotiated on good faith in relation to the grant of
petroleum exploration permit STP-EPA-0110’ dated 5 May 2015
MC01 Government Party (Department of Mines and Petroleum) initial negotiation
letter to Gnulli dated 11 December 2013
MC02 Initial letter from Rusa to Gnulli dated 23 December 2013
MC03 Gnulli submissions to the DMP dated 12 February 2014
MC04 Letter from Chas Lane to Maimbo Chilala dated 25 February 2014
MC05 Letter from Rusa to the Tribunal requesting mediation dated 11 March 2014
MC06 Email from Maimbo Chilala to Chas Lane offering working group meeting
time dated 23 April 2014
MC07 Email from Chas lane to Maimbo Chilala declining funding contribution dated
23 April 2014
MC08 Email from YMAC admin to Chas Lane and Paul Lipski attaching working
group meeting budget estimate dated 29 April2014
MC09 Email from Chas Lane to YMAC admin accepting invitation to first working
group meeting and declining funding contribution dated 29 April 2014
MC10 Email letter from Maimbo Chilala to Paul Lipski inviting Grantee Party to NTP
meeting dated 4 May 2014
MC11 Tribunal mediation conference synopsis and outcomes for first meeting of 5
May 2014
MC12 Email from Chas Lane to Tribunal, DMP and Maimbo Chilala declining
funding contribution dated 6 May 2014
MC13 Email from Maimbo Chilala to Chas Lane confirming Grantee Party's
attendance time at first working group meeting dated 23 May 2014
MC14 Email from Chas lane to Maimbo Chilala requesting Heritage Protocol
template dated 24 May 2014
36
MC17 Powerpoint on nature of Rusa’s exploration methods and proposal
presented at first working group meeting of 29 May 2014
MC18 Email from Chas Lane to Maimbo Chilala requested issues to be addressed and
Heritage Protocol template dated 3 June 2014
MC19 Email from Maimbo Chilala to Chas Lane providing list of issues to be
addressed in proposed agreement dated 11 June 2014
MC20 Tribunal mediation conference synopsis and outcomes for second meeting of
12 June 2014
MC21 Email letter from Chas Lane to Maimbo Chilala outlining Rusa’s list of
commitments to Gnulli including financial offer dated 11 June 2014
MC22 Email from Chas Lane to Maimbo Chilala requesting to use Heritage Protocol
template for another native title negotiation dated 13 June 2014
MC23 Email from Maimbo Chilala to Chas Lane attaching draft heritage protocol
with comments dated 30 June 2014
MC24 Email from Paul Lipski of Rusa forwarded to Maimbo Chilala with attached
Environmental Management Plan dated 1 July 2014
MC25 Environmental Management Plan dated July 2011 attached to MC24 email
MC26 Email from Chas Lane to Tribunal and Maimbo Chilala stating that
negotiations are progressing dated 3 July 2014
MC27 Tribunal mediation conference synopsis and outcomes for third meeting of 7
July 2014
MC28 Email from Chas Lane to Maimbo Chilala attaching proposed changes to draft
Heritage Protocol dated 14 July 2014
MC29 Email from Tribunal to Maimbo Chilala, Chas Lane and DMP postponing
scheduled mediation conference dated 24 September 2014 and Email from
Maimbo Chilala to Tribunal advising availability for next Tribunal mediation
conference dated 23 September 2014
MC30 Email from Tribunal to Maimbo Chilala, Chas Lane and DMP postponing
scheduled mediation conference, requesting parties’ availability and requesting
Paul Lipski's attendance at the next Tribunal mediation conference dated 24
September 2014
MC31 Email from Maimbo Chilala to Tribunal, Chas Lane and DMP advising
availability for next Tribunal mediation conference and stating that David
Farrell would be assuming carriage of the negotiations dated 25 September
2014
DDF01 Email exchange between David Farrell to Chas Lane regarding contribution
and availability for second Gnulli working group meeting dated 1 October
2014
DDF02 Email from Chas Lane to David Farrell confirming attendance dated 2 October
2014
37
DDF03 Letter from Paul Lipski of Rusa to all parties confirming Chas Lane’s authority
to represent Rusa dated 7 October 2014
DDF03A Meeting Minutes of second Gnulli Working Group meeting of 15 October 2014
DDF04 Compensation offer comparison sheet presented at the second Gnulli Working
Group meeting of 15 October 2014
DDF05 Article: 'Native Title Challenges Not Unbeatable', (11 June 2010) Oil & Gas
Gazette, p 44
DDF06 Email from Chas Lane to David Farrell forwarding update on progress sent to
Tribunal dated 29 October 2014
DDF07 Email from David Farrell to Chas Lane and Tribunal updating on progress
dated 30 October 2014
DDF08 Email from David Farrell to Chas Lane stating Gnulli’s compensation counter
offer dated 31 October 2014
DDF09 Email from Chas Lane to David Farrell reagridng counter offer dated 2
November 2014
DDF10 Filenote of phone call between Chas Lane and David Farrell dated 3 November
2014
DDF11 Tribunal mediation conference synopsis and outcomes for fourth meeting of 3
November 2014
DDF12 Email from David Farrell to Chas Lane requesting draft agreement dated 7
November 2014
DDF13 Email from Chas Lane to David Farrell agreeing to provide draft dated 8
November 2014
DDF14 Email from David Farrell to Chas Lane requesting annual report and financial
information dated 17 November 2014
DDF15 Email from Chas Lane to David Farrell in response dated 19 November 2014
DDF16 Email from Chas Lane to Tribunal and David Farrell advising delays in
providing agreement due to extended family business dated 8 December 2014
DDF17 Tribunal mediation conference synopsis and outcomes for fifth meeting of 8
December 2014
DDF18 Email from David Farrell to Government Party requesting whether the
information provided by Rusa meets its requirements dated 9 December 2014
DDF19 Email from DMP to David Farrell in response dated 15 December 2014
DDF20 Email from Chas Lane to David Farrell attaching draft agreement dated 19
December 2014
DDF21 Email from David Farrell to Chas Lane regarding attendance at third working
group meeting dated 19 January 2015
DDF22 Email from Chas Lane to David Farrell confirming attendance dated 21
January 2015 at 5:29am
DDF23 Email from David Farrell to Chas Lane requesting contribution towards costs
dated 21 January 2015 at 9:55am
DDF24 Email from Chas Lane to David Farrell in reply dated 21 January 2015 at
1:34pm
38
DDF25 Email from David Farrell to Chas Lane in reply dated 23 January 2015
DDF26 Email from David Farrell to Chas Lane confirming date for third working
group meeting dated 29 January 2015
DDF27 Email from David Farrell to Chas Lane confirming time and date for third
working group meeting dated 2 February 2015
DDF28 Email from Chas Lane to David Farrell regarding status of negotiations dated 7
February 2015
DDF29 Meeting Minutes of third Gnulli Working Group Meeting of 11 February 2015
DDF29A Copy of Rusa’s offer handed to Gnulli Working Group at third working group
meeting of 12 February 2015
DDF30 Email from David Farrell to Chas Lane requesting Rusa’s financials dated 13
February 2015
DDF31 Email from Chas Lane to David Farrell attaching financials dated 13 February
2015
DDF32 Current financial statement of Rusa as at 31 December 2014
DDF33 Tribunal mediation conference synopsis and outcomes for sixth meeting of 16
February 2015
DDF34 Western Australian Government Department of Minerals and Petroleum,
'Petroleum Acreage Bid Assessment Process State Waters and Onshore: Policy
and Guidelines'
DDF35 Email from Chas Lane to David Farrell attaching information dated 24
February 2015
DDF36 Letter from Tap Oil to Rusa terminating agreement dated 23 February 2015
DDF37 Email from Chas Lane to David Farrell advising lodgment of determination
application dated 26 February 2015
DDF38 Email from Tribunal to David Farrell, DMP and Chas Lane terminating
mediation dated 3 March 2015
DDF39 Email from Chas Lane to David Farrell regarding lodgment of determination
application dated 3 March 2015
DDF40 Email from David Farrell to Chas Lane in response dated 3 March 2015
DDF41 Email from Chas Lane to David Farrell in response dated 4 March 2015
Rusa Submissions
Rusa Letter Letter attaching submissions dated 28 April 2015
Rusa
Submission 1
‘Comments on the Affidavit of Maimbo Chilala’
Rusa
Submission 2
‘Comments on the Affidavit of David Farrell’
Rusa
Submission 3
‘Response to the Contentions of the Gnulli NTP’
Rusa Reply ‘Submission by Charles Lane in response to the submission of David Farrell (for the Gnulli NTP)’ dated 21 May 2015
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