Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Glenn Michael McKay and Dean Anthony Terry and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Glenn Michael McKay and Dean Anthony Terry and Another [2024] NNTTA 86 (26 November 2024)

Application No:

WO2024/0570

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection application

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

(native title party)

- and -

Glenn Michael McKay and Dean Anthony Terry

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	26 November 2024

Catchwords:	Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – 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

Representatives of the grantee party:

Glenn Michael McKay and Dean Anthony Terry

Representatives of the Government party:

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

REASONS FOR DISMISSAL

On 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 licence P 25/2793 to Glenn Michael McKay and Dean Anthony Terry (grantee party). The s 29 notice included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the Native Title Act.
The licence is located approximately 37.6 km north-easterly of Kambalda and covers an area of approximately 1.2 sq km. The licence sits 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 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 purpose of an inquiry into this matter.
On 4 September 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Marlinyu Ghoorlie were directed to provide contentions and evidence into the inquiry by 6 November 2024 however on the date of compliance, no material was received from Marlinyu Ghoorlie and neither was a request made for an extension of time.
On 13 November 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 20 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 discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.
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 applications in relation to prospecting licence P 25/2793 is dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
26 November 2024

The matter before the National Native Title Tribunal was an objection application brought by Henry Richard Dimer and others on behalf of the Marlinyu Ghoorlie native title party against the State of Western Australia and the proposed grantees, Glenn Michael McKay and Dean Anthony Terry, regarding a prospecting licence P 25/2793. The objection concerned the State's assertion that the grant of the prospecting licence was subject to the expedited procedure under the Native Title Act 1993 (Cth). The application was lodged within the prescribed time frame under section 32(3) of the Act, necessitating the Tribunal to determine whether the proposed licence grant was indeed an act attracting the expedited procedure.

The central legal issues revolved around whether the native title party, Marlinyu Ghoorlie, had complied with the Tribunal's directions and the implications of their non-compliance under section 148(b) of the Act. Specifically, the Tribunal needed to assess whether the failure to comply with the directions was sufficient grounds to dismiss the objection application. Additionally, the Tribunal had to consider the principles established in relevant case law, particularly the decision in Teelow v Page, to guide its discretion in dismissing an objection application for non-compliance.

In dismissing the objection application, the Tribunal noted that Marlinyu Ghoorlie had not provided any contentions or evidence as directed by 4 September 2024, despite being given sufficient time to do so. The Tribunal had issued a warning on 13 November 2024, giving all parties until 20 November 2024 to respond, but no response was received from Marlinyu Ghoorlie. The Tribunal applied the principles from Teelow v Page, which emphasize the importance of timely compliance with Tribunal directions. Given the lack of compliance and the absence of any justification or request for an extension, the Tribunal concluded that dismissing the objection application was warranted under section 148(b) of the Act.

The Tribunal dismissed the objection application regarding prospecting licence P 25/2793 under section 148(b) of the Native Title Act, due to the native title party's failure to comply with the Tribunal's directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established