Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Goldtimers Prospecting Pty Ltd and Another

[2024] NNTTA 89

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Goldtimers Prospecting Pty Ltd and Another [2024] NNTTA 89 (26 November 2024)

Application No: WO2024/0462, WO2024/0463, WO2024/0464, WO2024/0639

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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Goldtimers Prospecting Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	26 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: Matthew Cook

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

REASONS FOR DISMISSAL    

1. On 27 March 2024 and 8 May 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 24/5677, P 24/5678, P 24/5679 and P 26/4699

   to Goldtimers Prospecting Pty Ltd (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.

2. 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.

3. The details of the proposed licences are as follows:

   ·P 24/5677 is located approximately 16 km west of Ora Banda and covers an area of approximately 1.77 km²;

   ·P 24/5678 is located approximately 15.8 km west of Ora Banda and covers an area of approximately 1.77 km²

   ·P 24/5679 is located approximately 15.7 km west of Ora Banda and covers an area of approximately 1.6 km²

   ·P 26/4699 is located approximately 9.2 km south of Kalgoorlie and covers an area of approximately 0.46 km²

4. All four proposed licences sit wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).

5. On 22 May and 25 July 2024, 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

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purpose of an inquiry into these matters.

2. 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 30 October 2024 however on the date of compliance, no materials were received from Marlinyu Ghoorlie and no request for an extension was made.

3. On 6 November 2024, the Tribunal emailed all parties, noting that Marlinyu Ghoorlie had failed to comply and that the objection applications were now at risk of dismissal. Parties were given until close of business 12 November 2024 to provide a response to this communication however no responses were received.

Consideration of Dismissal

1. 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.

2. The principles relevant to 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.

3. 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. 

4. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.

Determination

1. The expedited procedure objection applications in relation to prospecting licences
   P 24/5677, P 24/5678, P 24/5679 and P 26/4699 are dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
26 November 2024