FMG Pilbara Pty Ltd/ Wintawari Guruma Aborginal Corporation; Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia
[2009] NNTTA 63
•23 June 2009
NATIONAL NATIVE TITLE TRIBUNAL
FMG Pilbara Pty Ltd/ Wintawari Guruma Aborginal Corporation; Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2009] NNTTA 63
(23 June 2009)
Application No: WF09/1
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
FMG Pilbara Pty Ltd (grantee party/applicant)
- and -
Wintawari Guruma Aboriginal Corporation WC97/89 (Wintawari Guruma native title party)
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Ned Cheedy and Others on behalf of the Yindjibarndi People WC03/3 (Yindjibarndi native title party)
- and -
The State of Western Australia (Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 23 June 2009
Catchwords: Native title – future act – application for a determination in relation to mining leases – power – jurisdiction – whether Government party and grantee party have negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) – conduct to be judged from the negotiations overall – Wintawari Guruma native title party has not negotiated in good faith - Government party and grantee party have negotiated in good faith.
Legislation:Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 36(2), 38, 155
Mining Act 1978 (WA)
Cases:Cox v Western Australia (2008), NNTTA 90, 219 FLR 72
FMG Pilbara Pty Ltd v Cox, [2009] FCAFC 49 (30 April 2009)
FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, NNTT WF08/31, [2009] NNTTA 38 (24 April 2009), Daniel O’Dea, Member
FMG Pilbara Pty Ltd/ Flinders Mines Limited/ Wintawari Guruma Aboriginal Corporation/ Western Australia, [2009] NNTTA 62 (23 June 2009), Daniel O’Dea, Member
Griffin Coal Mining Co Pty Ltd v Nyungar People (Gnaala Karla Booja)/Western Australia, (2005) 196 FLR 319
Gulliver Productions Pty Ltd/ Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, NNTT WF05/1, [2005] NNTTA 88 (30 November 2005), Hon C J Sumner, Deputy President
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (1 March 2007)
Placer (Granny Smith) Pty Ltd & Anor v Western Australia/Ron Harrington Smith & Others on behalf of the Wongatha People, (1999) 163 FLR 87
Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farms Pty Ltd & Anor/Western Australia, NNTT WF99/1, [1999] NNTA 235 (27 August 1999), Hon E M Franklyn QC, Deputy President
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People/June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner
Hearing dates: n/a
Representatives for the
Wintawari Guruma Mr Ronald Bower, Corser & Corser Lawyers
native title party: Mr Jerome Frewen, Desert Management Ltd
Representatives for
the Yindjibarndi Mr George Irving, John Toohey Chambers
native title party: Mr Simon Millman, Slater and Gordon
Representatives for Mr Ken Green, Green Legal Pty Ltd
the grantee party: Mr Sukhpal Singh, FMG Pilbara Pty Ltd
Representatives for Mr Matthew Pudovskis and Barry King, State Solicitor’s Office
the Government party: Ms Paola O’Neill, Department of Mines and Petroleum
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Background
On the following dates, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of future acts, namely the grant of the following mining leases (‘the proposed leases’) under the Mining Act 1978 (WA) to FMG Pilbara Pty Ltd (‘the grantee party’):
·19 December 2007 - M47/1409 comprising 6838.04 hectares located 45 kilometres west of Wittenoom in the Shire of Ashburton
·30 January 2008 - M47/1411 comprising 3500.47 hectares located 58 kilometres west of Wittenoom in the Shire of Ashburton
M47/1409 is overlapped by the Wintawari Guruma Aboriginal Corporation prescribed body corporate (established following the Federal Court making a determination of native title in favour of the Eastern Guruma People WC97/89 on 1 March 2007 – Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365) and the Yindjibarndi #1 registered claim (WC03/3, registered from 8 August 2003) at 25.65 and 74.35 percent respectively. M47/1411 is overlapped by the Wintawari Guruma Aboriginal Corporation prescribed body corporate and the Yindjibarndi #1 registered claim at 95.02 and 4.98 percent respectively.
Accordingly, the native title parties in respect of these proceedings are the Wintawari Guruma Aboriginal Corporation (‘the Wintawari Guruma native title party’) and Ned Cheedy and Others on behalf of the Yindjibarndi People (‘the Yindjibarndi native title party’).
The proposed leases are 100 percent overlapped by Department of Environment and Conservation threatened ecological community buffer zones. The underlying tenure is vacant crown land with the exception Hamersley Pastoral Lease 3114/1277 which overlaps M47/1409 at 14.9 percent. There is no prior history of any mining or exploration activity over the area other than the following active licences held by the grantee party:
·Exploration licence E47/1334 held since 2 June 2007 – overlapping M47/1409 and M47/1411 at 100 and 8.4 percent respectively; and
·Exploration licence E47/1333 held since 28 July 2007 – overlapping M47/1411 at 91.6 percent
On 23 January 2009, being a date more than six months after the s 29 notice was given, the grantee party made application pursuant to s 35 of the Act for a future act determination under s 38 (‘the s 35 Application’). The s 35 Application was made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of its intention to do the act.
At the preliminary conference on 16 February 2009 each of the native title parties advised the Tribunal it intended to allege the grantee and Government parties had not negotiated in good faith in accordance with s 31(1)(b) of the Act and accordingly, pursuant to s 36(2), the Tribunal did not have power to make the determination requested in the application. In consequence, and with the consent of all the parties, a series of orders were made relating to the lodging of materials relevant to the conduct of the negotiations in order that the Tribunal might determine the issue. There were a series of requests for extensions of time by the native title parties and consequent extensions to the other parties. The Tribunal was also provided with extensive audiovisual materials relevant to a meeting that had taken place between the grantee party and the Yindjibarndi native title party. All parties have filed submissions germane to the issue.
Before I proceed further, it is important to understand that while this application seeks a determination pursuant to s 38 of the proposed leases (ie M47/1409 and 1411), during all of the discussions and negotiations between the grantee party and the native title parties, the proposed leases were always discussed as part of a batch of applications which included those that have been the subject of two prior good faith decisions before myself: FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2009] NNTT WF08/31 NNTTA 38 (24 April 2009) (‘FMG Pilbara 1’) and FMG Pilbara Pty Ltd/ Flinders Mines Limited/ Wintawari Guruma Aborginal Corporation/ Western Australia, [2009] NNTT WF08/32 and NNTT WF08/33 NNTTA 62 (23 June 2009) (‘FMG Pilbara 2’). Consequently the history of negotiations and the parties’ submissions are very similar (and at times identical) to those matters.
Good faith negotiations – power of the Tribunal to conduct an inquiry
The Tribunal must be satisfied as a pre-condition to determining a s 35 application that parties have negotiated in good faith as required by s 31(1)(b) of the Act and has ruled that the effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith in negotiations which would normally require that party to adduce evidence to support its allegations. The Tribunal is not required to adopt strict rules on the burden of proof but any party alleging a lack of good faith in negotiations must provide contentions and documents which specify in detail the matters it relies on (Rita Dempster & Ors (Southern Noongar)/Bayside Abalone Farms Pty Ltd & Anor/Western Australia, NNTT WF99/1, [1999] NNTTA 235 (27 August 1999) Hon E M Franklyn QC, Deputy President (at pps 4, 21); Placer (Granny Smith) Pty Ltd & Anor v Western Australia/Ron Harrington Smith & Others on behalf of the Wongatha People, 163 FLR 87, at [21]-[28]).
Once the issue of good faith has been raised, the Tribunal must deal with it in order to satisfy itself that it has the power to proceed to make a determination under s 38. This is so, even if the issue is raised belatedly (Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People/June Ashwin & Ors on behalf of the Wutha People/Western Australia, [2003] NNTT WF03/2, NNTTA 82 (9 July 2003), Hon C J Sumner (at 12-16) ). No party indicated on the listing date that they sought to have the matter dealt with other than on the papers and I believe it appropriate to do so in the circumstances.
Good faith negotiations – legal principles
The obligation to negotiate in good faith is contained in s 31 of the Act:
‘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 the 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 s 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.’
The Tribunal considered the applicable legal principles to the issue of negotiation in good faith in Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, NNTT WF05/1, [2005] NNTTA 88 (30 November 2005), Hon C J Sumner, Deputy President, (‘Gulliver’) at [8]-[20] and in Griffin Coal Mining Co Pty Ltd v Nyungar People (Gnaala Karla Booja)/Western Australia, (2005) 196 FLR 319, (‘Griffin’) at 328-329/[31]-[35] and 331-334/[39]-[47]. Recently the Full Court of the Federal Court of Australia expounded on the principles that apply when considering if a party has negotiated in good faith (FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (30 April 2009)(‘Cox’) which set aside the Tribunal’s decision Cox v Western Australia (2008), NNTTA 90, 219 FLR 72) and I am, of course, bound by the findings of that Court (see FMG Pilbara 2 at [14]-[20]).
Contentions and evidence
The Wintawari Guruma native title party provided the following submissions and evidence supporting its contention that the Government and grantee parties did not negotiate in good faith regarding the doing of the act:
·Submissions for good faith decision and annexures ‘WGNTP1’ to ‘WGNTP10’, lodged 6 March 2009
·Response to grantee party’s and Government party’s submissions, lodged 2 April 2009
The Yindjibarndi native title party relies upon the following submissions and evidence:
·Statement of contentions, lodged 6 March 2009
·Statement of contentions, lodged with the Tribunal in respect of FMG Pilbara 1
·Affidavit of Michael Woodley, sworn on 24 February 2009, dealing with the negotiations between March 2008 and 26 November 2008, and attaching a draft Yindjibarndi Heritage Agreement and correspondence dated between 14 March 2008 and 20 May 2008 – annexures ‘MW1’ to ‘MW6’, lodged with the Tribunal in respect of FMG Pilbara 1
·Affidavit of Simon Alexander Millman, sworn on 12 February 2009, dealing with the negotiations between 14 May 2008 and 26 November 2008, and attaching correspondence from that period – annexures ‘SM1’ to ‘SM18’, lodged with the Tribunal in respect of FMG Pilbara 1
·Statement of contentions in reply to the Government party, lodged 7 April 2009
·Statement of contentions in reply to the grantee party, lodged 7 April 2009
·Further contentions, lodged 12 May 2009
The further contentions of the Yindjibarndi native title party were filed in response to the Tribunal’s 4 May 2009 invitation to all parties, granting leave to lodge further submissions in light of Cox. The further contentions do not address Cox and therefore have not been considered by the Tribunal for the purposes of this inquiry.
The grantee party’s evidence and submissions in relation to the good faith issue comprise the following documents:
·Grantee party’s statement of contentions, lodged 24 March 2009
·Grantee party’s statement of facts relevant to the Wintawari Guruma native title party, lodged 24 March 2009, comprising a history of negotiations over a whole of claim land access agreement from 30 March 2006 until 23 January 2009 (lodgement of the s 35 Application) and supporting documents ‘GP7’ to ‘GP8’
·Grantee party’s statement of facts relevant to the Yindjibarndi native title party, lodged 24 March 2009, comprising a history of negotiations over a whole of claim land access agreement from 2005 until 23 January 2009 (lodgement of the s 35 Application) and supporting documents ‘GP1’ to ‘GP6’
·Grantee party’s statement of contentions, lodged 23 March 2009 in respect of FMG Pilbara 2
·Grantee party’s statement of facts, lodged 23 March 2009, comprising a history of negotiations with the Wintawari Guruma native title party over a whole of claim land access agreement from 30 March 2006 until 19 December 2008 (lodgement of the s 35 Applications) and supporting documents ‘GP1’ to ‘GP60’, lodged in respect of FMG Pilbara 2
·Affidavit of Sukhpal Singh, sworn 23 March 2009, dealing with some of the issues raised in the Wintawari Guruma native title party’s submissions for good faith and annexures ‘SS1’ to ‘SS4’, lodged in respect of FMG Pilbara 2
·Grantee party’s statement of contentions lodged 3 March 2009 in respect of FMG Pilbara 1
·Grantee party’s statement of facts lodged 3 March 2009 comprising a history of negotiations with the Yindjibarndi native title party initially over a whole of claim land access agreement (‘WOCLAA’) and subsequently over the proposed leases from 7 February 2007 until 28 November 2008 (lodgement of the Application) and supporting documents –‘GP1’ to ‘GP55’, lodged in respect of FMG Pilbara 1
·Affidavit of Blair William McGlew, sworn 24 February 2009, dealing with the above negotiations between February 2007 until an unspecified time after June 2008, and attaching correspondence and other documents dated between 30 May 2007 and 12 September 2008 – annexures ‘BM1’ to ‘BM17’, lodged in respect of FMG Pilbara 1
·Grantee party’s response to the electronic audiovisual evidence, lodged with the Tribunal on 26 March 2009 in respect of FMG Pilbara 1
·Grantee party’s response to the Yindjibarndi native title party’s contention that the grantee party’s statement of facts is inadmissible, lodged with the Tribunal on 1 April 2009 in respect of FMG Pilbara 1
·Grantee party’s further submissions on the issue of good faith, lodged 11 May 2009 in response to the Tribunal’s 4 May 2009 invitation to parties to lodge further submissions in light of Cox
The Government party’s evidence and submissions in relation to the good faith issue comprise the following documents:
·Government party’s statement of contentions regarding negotiation in good faith with the Wintawari Guruma native title party, lodged 23 March 2009
·Government party’s statement of contentions regarding negotiation in good faith with the Yindjibarndi native title party, lodged 23 March 2009
·Affidavit of Paola O’Neill, sworn 23 March 2009, providing an overview of negotiations with the Wintawari Guruma native title party, and attaching correspondence and other documents dated between 3 October 2007 and 18 December 2008 and annexures ‘PON1’ to ‘PON23’
·Affidavit of Paola O’Neill, sworn 23 March 2009, providing an overview of negotiations with the Yindjibarndi native title party, and attaching correspondence and other documents dated between 3 October 2007 and 3 July 2008 and annexures ‘PON1’ to ‘PON13’
·Affidavit of Paola O’Neill and attachments, sworn 3 March 2009, lodged with the Tribunal in respect of FMG Pilbara 1
·Government party’s further contentions regarding negotiations in good faith – effect of Decision in Cox, lodged 11 May 2009 in response to the Tribunal’s 4 May 2009 invitation to parties to lodge further submissions in light of Cox
Additionally, at the request of the grantee party and with the consent of the Government and Yindjibarndi native title party, on 6 March 2008 the Yindjibarndi native title party provided the Tribunal and the parties with an edited audiovisual recording of a negotiation meeting held in Roebourne, specifically the discussions between the Yindjibarndi native title party, the grantee party and their respective representatives on 11 and 12 June 2008. The audiovisual recording is the subject of a s 155 order prohibiting its disclosure to any other person and limiting its use for the purposes of the inquiry into FMG Pilbara 1 and the s 35 Application.
As in FMG Pilbara 1, the Yindjibarndi native title party objected to the reception of the grantee party’s statement of facts as being inadmissible as evidence in this matter. I adopt my findings at [15]-[17] of that matter and the relevant finding in FMG Pilbara 2 at [10] and [11]. It is the quality of a grantee party’s conduct subsequent to the relevant s 29 notification days that the Tribunal must assess for the purposes of s 31(1)(b) and negotiations which occurred prior to those dates are relevant to that assessment only as background information which may assist in understanding the nature of the subsequent behavior of the parties.
Wintawari Guruma native title party’s contentions
The Wintawari Guruma native title party contentions are the same as submitted in FMG Pilbara 2 and described at [62]-[64] of that decision.
Yindjibarndi native title party’s contentions
The Yindjibarndi native title party relies on the contentions submitted in FMG Pilbara 1 and described at [18]-[19] of that decision. In its replies to the government and grantee parties’ submissions for this matter, it relies upon those made in FMG Pilbara 1 and described at [23]-[24] of that decision and in my view raise no further issues which influence my findings in this matter.
Grantee party’s contentions
In respect of the Wintawari Guruma native title party the grantee party relies on the contentions submitted in FMG Pilbara 2 and described at [65]-[66] of that decision. Similarly, in respect of the Yindjibarndi native title party, the grantee party relies on the contentions submitted in FMG Pilbara 1 and described at [20]-[21] of that decision.
Government party’s contentions
In respect of the Wintawari Guruma native title party, the Government party relies on the contentions submitted in FMG Pilbara 2 and makes the same submissions described at [67] of that decision. Similarly, in respect of the Yindjibarndi native title party, the Government party relies on the contentions submitted in FMG Pilbara 1 and makes the same submissions described at [22] of that decision.
Good faith negotiations – Government party
In relation to the Government party’s good faith negotiations with the Wintawari Guruma native title party, I note that the history of negotiations between the two parties is the same as described in FMG Pilbara 2 at [69]-[72] save that no response to the Government party’s standard initial negotiation letter was received from the Wintawari Guruma native title party in respect of the proposed leases the subject of this matter. Accordingly I adopt the relevant findings of FMG Pilbara 2 at [73]-78].
In relation to the Government Party’s good faith negotiations with the Yindjibarndi native title party, I also note that the history of negotiations between the two parties is the same as described in FMG Pilbara 1 at [25]-[37] and accordingly I adopt the findings at [38]-[51].
Taking into account the overall circumstances of the negotiations, including the conditions offered and the Government party’s awareness of the bilateral negotiations between the native title and grantee parties, I find the Government party has negotiated in good faith with both the native title parties.
Good faith negotiations – grantee party and the Wintawari Guruma native title party
In relation to the grantee party’s good faith negotiations with the Wintawari Guruma native title party, I note that the history of negotiations between the two parties is the same as described in FMG Pilbara 2 at [24]-60] save that two further letters were sent by the grantee party as follows:
·On 19 December 2008 Mr Singh for the grantee party wrote to Mr Bower for the Wintawari Guruma native title party “we remain open to a negotiated outcome. We look forward to hearing from you in relation to the matters raised in my letter of 18 December 2008.” (GP7)
·On 23 January 2009 Mr Singh again write to Mr Bower advising that the grantee party “has today filed an arbitral determination application” in respect of the proposed leases and “We remain open to a negotiated outcome.”(GP8)
I note that the further correspondence submitted for this matter does not add to my findings in FMG Pilbara 2 other than to show that at the time of lodgement of the s 35 Application on 23 January 2009, the Wintawari Guruma native title party had still not met amongst its members and provided a counter offer, despite agreeing to do so at the meeting with the grantee party on 23 October 2008, some four months previously. Therefore, I adopt the findings in FMG Pilbara 2 at [79]-[90] and find the grantee party negotiated in good faith with the Wintawari Guruma native title party. Given the grantee party relies on its contentions and evidence submitted in FMG Pilbara 2, and those contentions assert the Wintawari Guruma native title party did not negotiate in good faith, I also adopt the findings at [91]-100] and find that the conduct of the Wintawari Guruma native title party in the negotiations in relation to the proposed leases amounted to a failure to negotiate in good faith.
Good faith negotiations – grantee party and the Yindjibarndi native title party
In relation to the grantee party’s good faith negotiations with the Yindjibarndi native title party, I note that the history of negotiations between the two parties is the same as described in FMG Pilbara 1 at [52]-[73] save that some further negotiations occurred between the parties after the lodgement of that s 35 application until the lodgement of this s 35 Application on 23 January 2009:
·Via letter to the grantee party on 8 December 2008, Mr Millman for the Yindjibarndi native title party advised “the Yindjibarndi people have reconsidered FMG’s offer and have rejected it... Accordingly the Yindjibarndi People ask FMG to reconsider the offer” and again requested the grantee party fund a proposed meeting with the native title party on 10 December 2008 in Roebourne (attaching a schedule of estimated costs totalling $41,455 excluding GST) (GP1)
·On the same day Mr Singh for the grantee party wrote to Mr Millman “Fortescue confirms our previous position... that is, Fortescue is prepared to fund the [10 December 2008] meeting but up to a maximum of $3,000.” (GP2)
·On the following day the Mr Singh wrote to Mr Millman:
‘FMG requests that you seek your client’s instructions in relation to the draft section 31 agreement... We urge you to meet with your clients tomorrow 10 December 2008 to do so, noting that we are prepared to contribute $3,000 towards the costs of doing so. We request this because we have been negotiating for some time now in relation to the Priority Tenements and we are actively considering lodging a section 35 determination in relation to the granting of ... M47/1409 and M47/1411’(GP3)
·On 16 December 2008 Mr Singh again wrote to Mr Millman reiterating its offer to fund up to $3,000 for a proposed meeting with the native title party on the following day in Roebourne and requesting a “substantive response” in the form of:
‘(a) substantive comments on the Proposed Agreement, including by way of proposed amendments or additions to the Proposed Agreement; and
(b) advice of any effect on registered native title rights and interests ... which are not addressed by the Proposed Agreement....
In the absence of a response as contemplated above from the Yindjibarndi People, FMG is inclined to shortly seek an arbitral determination in relation to the remaining Priority Tenements’ (GP4)
·On 15 January 2009 the grantee party wrote to Mr Millman advising that “Fortescue will proceed to seek an arbitral determination under the NTA in relation to the remaining Priority Tenements if we receive no response by close of business on 22 January 2009” (GP5)
·No response was received from the Yindjibarndi native title party by the 22 January 2009, and the s 35 Application was lodged the following day.
I note that the further evidence submitted above does not add to my findings in FMG Pilbara 1 at [52]-[73], other than to show that despite the additional two months, the parties failed to overcome the impasse described in that matter. I adopt those findings and find the grantee party negotiated in good faith with the Yindjibarndi native title party.
Decision
The Wintawari Guruma native title party has not negotiated with the grantee party as required by s 31(1) of the Native Title Act 1993 (Cth). The Government party and the grantee party have negotiated in good faith with the native title parties as required by s 31(1) of the Native Title Act 1993 (Cth) and the Tribunal has power to conduct an inquiry and make a determination.
Daniel O’Dea
Member
23 June 2009
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