Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Alex Bruce King and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Alex Bruce King and Another [2024] NNTTA 83 (11 November 2024)

Application No:

WO2024/0567, WO2024/0569

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party)

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Alex Bruce King

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	11 November 2024

Catchwords:	Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – s 148(b) – objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)
Cases:	Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)
Representative of the native title party:	Parsa Ardestani, Houston Legal

Representative of the grantee party:

Alex Bruce King

Representatives of the Government party:

Andrea Wyles, David Crabtree and Paola O’Neill, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

On 10 April 2024 and 24 April 2024, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P 24/5721 and P 24/5710 to Alex Bruce King (grantee party). The s 29 notices included a statement that the State considers the grant of the proposed licences are acts attracting the expedited procedure under the Native Title Act (expedited procedure statement).
If the expedited procedure applies, the State may grant the proposed licences without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.
The proposed licence P 24/5721 is located approximately 2.4 km east of Broad Arrow and covers an area of approximately 1.7 sq km. The proposed licence P 24/5710 is located approximately 4.5 km west of Broad Arrow and covers an area of approximately 1.64 sq km. Both proposed licences sit wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).
On 3 July 2024, the legal representative for Marlinyu Ghoorlie lodged objection applications with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the licences. The objection applications were lodged within the timeframe outlined in s 32(3) of the Native Title Act and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licences are acts attracting the expedited procedure.

Relevant Facts

Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purpose of the inquiry into these matters.
On 4 September 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. As part of these directions, Marlinyu Ghoorlie were directed to provide contentions and evidence into the inquiry by 23 October 2024. On the date Marlinyu Ghoorlie’s compliance was due, the Tribunal did not receive any contentions or evidence from them.
On 29 October 2024, the Tribunal emailed all parties, noting that Marlinyu Ghoorlie had failed to comply, and that the objection application was now at risk of dismissal under s 148(b) of the Native Title Act. Parties were given until close of business 5 November 2024 to provide a response. No response from Marlinyu Ghoorlie has been received to date.

Consideration of Dismissal

Under s 148(b) of the Native Title Act, the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the native title party 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, doing so has significant consequences for the native title party and is not an action taken lightly.
The nature of the expedited procedure and the principles relevant in considering dismissal of an objection application for failure to comply with directions are set out in the Tribunal's decision in Teelow v Page at [13]. I have applied those principles in my consideration of this matter.
On this occasion, it is my view that Marlinyu Ghoorlie has been afforded sufficient opportunity to progress the objection applications but have failed to do so within a reasonable time. Marlinyu Ghoorlie have failed to comply with directions set by the Tribunal, have not provided reasoning for their non-compliance and no request for an extension has been made.
Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.

Determination

The expedited procedure objection applications in relation to prospecting licences P 24/5721 and P 24/5710 are dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
11 November 2024

The case involves Marlinyu Ghoorlie, represented by Henry Richard Dimer and others, objecting to the proposed grant of prospecting licences P 24/5721 and P 24/5710 by the State of Western Australia to Alex Bruce King. The objection was lodged under the Native Title Act 1993 (Cth) as the proposed licences lie within the registered native title claim area of Marlinyu Ghoorlie. The National Native Title Tribunal was tasked with determining whether the grant of the licences were acts attracting the expedited procedure, which would allow the State to bypass the right to negotiate procedure. The core legal issues centred around the application of the expedited procedure under the Native Title Act, specifically whether the native title party had complied with the procedural requirements set by the Tribunal, and whether the objection applications should be dismissed under s 148(b) of the Act for failure to comply with Tribunal directions.

The Tribunal, constituted by Mr Glen Kelly, had to consider the principles established in previous cases such as Teelow v Page, which outline the nature of the expedited procedure and the circumstances under which an objection application may be dismissed for non-compliance with directions. The Tribunal issued directions on 4 September 2024, requiring Marlinyu Ghoorlie to submit contentions and evidence by 23 October 2024. Upon failing to comply, the Tribunal warned all parties on 29 October 2024 that the objection application was at risk of dismissal. Despite a further opportunity to respond by 5 November 2024, Marlinyu Ghoorlie did not provide any contentions, evidence, or reasoning for their non-compliance. The Tribunal found that Marlinyu Ghoorlie had been given sufficient opportunity to proceed with the objection applications but had failed to comply with the directions within a reasonable time, leading to the conclusion that the objection applications should be dismissed.

The Tribunal determined that the objection applications in relation to prospecting licences P 24/5721 and P 24/5710 were dismissed under s 148(b) of the Native Title Act due to the failure of Marlinyu Ghoorlie to comply with the Tribunal's directions. This decision allows the State of Western Australia to proceed with the grant of the prospecting licences without the necessity of entering into the right to negotiate procedure. The Tribunal's decision underscores the importance of adhering to procedural requirements and the consequences of failing to do so, particularly in matters involving native title rights and the expedited procedure under the Native Title Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established