Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Bernard James McAuliffe and Anor

[2024] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Bernard James McAuliffe and Anor [2024] NNTTA 7 (22 February 2024)

Application No(s): WO2023/0591, WO2023/0592

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/Marlinyu Ghoorlie)

- and -

Bernard James McAuliffe

(grantee)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	22 February 2024

Catchwords:

Native title – future acts – 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, 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)

 Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Complete Prospecting Pty Ltd and Anor [2024] NNTTA 4 (Dimer v Complete Prospecting)

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Fortuna Resources Pty Ltd & Anor [2024] NNTTA 3 (Dimer v Fortuna)

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Gemlab Australia Pty Ltd & Anor [2024] NNTTA 1 (Dimer v Gemlab)

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Rino Borromei & Anor [2024] NNTTA 2 (Dimer v Borromei)

MICHAEL DANIEL TEELOW/MICHAEL PAGE/NORTHERN TERRITORY [2001] NNTTA 107; 166 FLR 266 (TEELOW V PAGE)

Representative of the native title party:

Rachel McGarry, Houston Legal & Consultants

Representative of the grantee: Mark Borman, Mark Borman Land Management

Representatives of the State: 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 various prospecting licences to the grantee,[1] and included a statement that it considers the grants attract the expedited procedure. The effect of giving such a notice is that unless a native title party lodges an objection, the acts may be done without first requiring all the parties to negotiate in good faith.

   [1] P 16/3414 (WO2023/0591); P 16/3415 (WO2023/0592).

3. Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licences and a native title party for the purposes of the Act.[2]

   [2] See s 30 of the Act.

4. In July 2023, Marlinyu Ghoorlie lodged objection applications to the State’s inclusion of the expedited procedure statement to the proposed grants.  As a result, unless the application is withdrawn or dismissed, the Tribunal is required to determine whether the grant of the proposed licences are acts attracting the expedited procedure.[3]

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

Power of tribunal where no jurisdiction, failure to proceed etc.

1. Following lodgement and acceptance of the objections by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  The directions in place in this inquiry were amended on two occasions at the request of the native title party, and in consultation with the parties.

2. In accordance with the amended directions made on 17 November 2023, Marlinyu Ghoorlie’s contentions and evidence were due on or before 29 January 2024.

3. No contentions were received for Marlinyu Ghoorlie by 29 January 2024, or at all, and no request for extension was made.

4. On 7 February 2024, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply and that the objections were now at risk of dismissal under s 148(b) of the Act. The email outlined (emphasis in original):

   In the notification email, parties were advised:

   If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.

   Parties are now on notice this matter is at risk of dismissal. The native title party has until 14 February 2024 to provide reasons as to why compliance has not been met, and request any further time, for Member Eaton’s consideration and party input. Further time will not automatically be granted. If there is no response on or by 14 February 2024, the matter will be referred back to Member Eaton for consideration of dismissal.

5. The Tribunal received no response by 14 February 2024, or at all.  On 20 February 2024, the Tribunal emailed all parties to advise that the objection applications were now proceeding to dismissal. 

6. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[4]  I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[5]  

   [4] Teelow v Page at [13]. 

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

7. 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.

8. 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.  As set out in Stock v Giralia:[6]

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

   [6] Stock v Giralia, 6-7.

9. In this matter Marlinyu Ghoorlie have failed to progress the objection applications 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.[7]

   [7] See Dimer v Complete Prospecting; Dimer v Gemlab; Dimer v Fortuna; Dimer v Borromei.

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

Determination

1. The expedited procedure objection applications in relation to P 16/3414 and P 16/3415 are dismissed pursuant to s 148(b) of the Act.

Ms Lisa Eaton
Member
22 February 2024