Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Complete Prospecting Pty Ltd and Anor

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Complete Prospecting Pty Ltd and Anor [2024] NNTTA 33 (13 May 2024)

Application No:

WO2023/0853

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

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

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

(native title party)

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Complete Prospecting Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	13 May 2024

Catchwords:	Native title – future acts – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)
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*)
Representative of the native title party:	Rachel McGarry, Houston Legal & Consultants

Representative of the grantee:

Matthew Stratfold

Representative of the Government party party:

Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

Background

On 20 September 2023, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P 16/3424 to Complete Prospecting Pty Ltd. The s 29 notice included a statement that the State considers the grant of the proposed licence an act attracting the expedited procedure under the Native Title Act (expedited procedure statement).
If the expedited procedure applies, the State may grant the proposed licence without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.
The proposed licence is located approximately 24.5 km west of Ora Banda and sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).
On 30 October 2023, the legal representative for Marlinyu Ghoorlie lodged an objection application with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the licence. The objection application was 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 licence is an act attracting the expedited procedure.

Relevant Facts

Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.
On 24 January 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Per those directions, Marlinyu Ghoorlie was directed to provide its contentions and evidence by 10 April 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.
On 30 April 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 7 May 2024 to provide a response and were advised that should there be no response, the matter would be referred to myself for consideration of dismissal. No response was received from Marlinyu Ghoorlie.

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 application 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 application should be dismissed.

Determination

The expedited procedure objection application in relation to P 16/3424 is dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
13 May 2024

The case of Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Complete Prospecting Pty Ltd and Anor was brought before the National Native Title Tribunal, presided over by Mr Glen Kelly. The Marlinyu Ghoorlie, as native title parties, lodged an objection application to the grant of a prospecting licence by the State of Western Australia to Complete Prospecting Pty Ltd, arguing that the grant of the licence was subject to the right to negotiate process under the Native Title Act 1993 (Cth) rather than the expedited procedure. The primary legal issue the Tribunal had to decide was whether the grant of the prospecting licence by the State of Western Australia to Complete Prospecting Pty Ltd was an act attracting the expedited procedure under the Native Title Act, and whether the objection application by the Marlinyu Ghoorlie should be dismissed for failure to comply with directions.

The court considered the principles relevant to the expedited procedure and the dismissal of objection applications for non-compliance with directions, as outlined in the decision of Teelow v Page. It was noted that the Tribunal had broad discretion to dismiss an objection application, but such a decision carries significant consequences for the native title party. In this instance, the Tribunal determined that the Marlinyu Ghoorlie had been given ample opportunity to progress their objection application but failed to comply with the directions set by the Tribunal within a reasonable time. The Marlinyu Ghoorlie did not provide any reasoning for their non-compliance and made no request for an extension of time. Given these circumstances, the Tribunal concluded that the objection application should be dismissed under s 148(b) of the Native Title Act.

The Tribunal dismissed the objection application in relation to prospecting licence P 16/3424. The decision emphasised that the dismissal was not taken lightly, but the Marlinyu Ghoorlie's failure to comply with the Tribunal's directions and the lack of any explanation or request for an extension justified the dismissal. This decision has significant implications for the Marlinyu Ghoorlie, as the dismissal of their objection application means that the grant of the prospecting licence may proceed under the expedited procedure, without the need for the right to negotiate process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established