Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v HPAA Pty Ltd & Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v HPAA Pty Ltd & Another [2024] NNTTA 73 (20 September 2024)

Application No:

WO2024/0400

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

- and -

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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HPAA 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:	20 September 2024

Catchwords:	Native title – future act – proposed grant of exploration 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:	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:

Yvette Collins, TG Mining Title Services Pty Ltd

Representative of the Government party:

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

REASONS FOR DECISION

Background

On 14 February 2024, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E 70/6579 to HPAA 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 72 km northerly of Mukinbudin and sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).
On 16 May 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 purposes of the inquiry in this matter.
On 10 July 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 28 August 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.
On 4 September 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 11 September 2024 to provide a response. No response from any party 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 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 E 70/6579 is dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
20 September 2024

The National Native Title Tribunal was tasked with determining an objection application lodged by Henry Richard Dimer and others on behalf of Marlinyu Ghoorlie against the proposed grant of an exploration licence by HPAA Pty Ltd. The objection was made in response to the State of Western Australia's intention to grant exploration licence E 70/6579, which falls within the registered native title claim area of Marlinyu Ghoorlie. The central legal issue was whether the grant of the proposed licence was an act attracting the expedited procedure under the Native Title Act 1993, allowing the State to bypass the right to negotiate process.

The primary legal issues the Tribunal had to decide involved interpreting the applicability of the expedited procedure under the Native Title Act and assessing whether the objection application should be dismissed for failure to comply with Tribunal directions. Specifically, the Tribunal needed to determine if the failure of Marlinyu Ghoorlie to comply with directions and provide contentions or evidence within the stipulated timeframe justified dismissing the objection application under section 148(b) of the Act. This involved a consideration of the principles established in previous cases, such as Teelow v Page, which outline the consequences and discretion of the Tribunal in such matters.

The Tribunal, led by Mr Glen Kelly, found that Marlinyu Ghoorlie had not complied with the directions to submit contentions and evidence by the specified deadline. Despite being notified of the potential consequences of non-compliance, Marlinyu Ghoorlie failed to respond or provide any reasoning for their non-compliance. The Tribunal concluded that the failure to comply with the directions within a reasonable time justified the dismissal of the objection application. The decision was influenced by the significant consequences of dismissal for the native title party and the necessity to uphold the integrity of the Tribunal's processes. As a result, the objection application was dismissed under section 148(b) of the Native Title Act.

The final orders of the Tribunal were to dismiss the expedited procedure objection application in relation to exploration licence E 70/6579, effectively allowing the State of Western Australia to proceed with the grant of the licence to HPAA Pty Ltd without further objection from Marlinyu Ghoorlie.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established