Henry Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v HJH Nominees Pty Ltd & Anor

[2024] NNTTA 36

NATIONAL NATIVE TITLE TRIBUNAL

Henry Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v HJH Nominees Pty Ltd & Anor [2024] NNTTA 36 (23 May 2024)

Application No: WO2023/0621

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Henry Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group (WC2017/007)

(native title party)

- and -

HJH Nominees Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	23 May 2024

Catchwords:

Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 30, 32, 109(1), 148(b) (the Act)

Cases:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives of the native title party:

Rachel McGarry, Houston Legal & Consultants

Representative of the grantee party: Tim Kavenagh, Kavenagh Legal

Representatives of the Government party: Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

1. This is a decision made under s 148(b) of the Act, which empowers the Tribunal to dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the application or comply with a direction of the Tribunal.

2. The State gave public notification of the proposed grant of a prospecting licence to the grantee,[1] and included a statement that it considers the grant attracts the expedited procedure.[2]  The effect of giving such a notice is that unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith.

   [1] E 70/6411.

   [2] See s 29 of the Act.

3. Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licence and a native title party for the purposes of the Act.[3]  The legal representative for Marlinyu Ghoorlie lodged an objection application to the State’s inclusion of the expedited procedure statement.  As a result, unless the application is withdrawn or dismissed, the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.[4]

   [3] See s 30 of the Act.

   [4] See s 32(4) of the Act.

Native title party’s failure to proceed

1. Following acceptance of the objection application by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  In accordance with those directions, Marlinyu Ghoorlie’s contentions and evidence were due on or before 12 April 2024.  The Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie by this date, or at all.

2. On 30 April 2024, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply and that the objection was now at risk of dismissal under s 148(b) of the Act. Marlinyu Ghoorlie was given until 7 May 2024 to provide a response or request further time. The Tribunal received no response from any party by 7 May 2024, or at all.

Consideration of Dismissal

1. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[5]  I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  Once an objection application is made it is incumbent on the objector to progress the application and to communicate with the Tribunal and all parties.[6]  The Tribunal must also ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[7] 

   [5] Teelow v Page at [13]. 

   [6] Stock v Giralia, 6-7.

   [7] See s 109(1) of the Act.

2. Under s 148(b) the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal. While the Tribunal has broad discretion to dismiss an objection application, it is not an action to be taken lightly.

3. In this matter, Marlinyu Ghoorlie have failed to progress the objection application within a reasonable period despite being afforded sufficient opportunity.  They have failed to comply with directions set by the Tribunal, they have not provided any reason for their non-compliance, and no request for an extension of time has been made.  Unfortunately, Marlinyu Ghoorlie have failed to progress several objection applications recently and I do not make this dismissal lightly.

4. Having regard to all the facts and circumstances, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to E 70/6411 is dismissed pursuant to s 148(b) of the Act.

Lisa Eaton
Member
23 May 2024