Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Kym Anthony McClaren and Another

[2023] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Kym Anthony McClaren and Another [2023] NNTTA 43 (5 December 2023)

Application No: WO2023/0448

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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Kym Anthony McClaren

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	5 December 2023

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – expedited procedure objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 32, 148
Cases:	David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’)
Representative of the native title party:	Rachel McGarry, Houston Legal

Representative of the grantee party: Tim Kavenagh, Kavenagh Legal

Representative of the Government party: Paola O’Neill, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. Kym Anthony McClaren has applied for the grant of an exploration licence (E 16/624) in the Goldfields region of Western Australia. The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth).

2. The licence is located wholly within the area of the Marlinyu Ghoorlie native title determination application (WAD647/2017) (Marlinyu Ghoorlie Claim) and the registered native title claimant for the Marlinyu Ghoorlie Claim (Marlinyu Ghoorlie) objects to the application of the expedited procedure to the grant of the licence. The Tribunal is therefore required to determine whether the expedited procedure applies: s 32(4) Native Title Act.

3. Marlinyu Ghoorlie has not complied with the Tribunal’s directions and, for the reasons that follow, I have dismissed Marlinyu Ghoorlie’s objection application.

What steps has Marlinyu Ghoorlie taken to comply with the Tribunal’s directions?

1. On 5 June 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry into whether the expedited procedure applies to the grant of the licence. In accordance with those directions, Marlinyu Ghoorlie’s contentions and evidence were due to be provided on or before 13 July 2023.

2. I heard this matter at conferences on 22 June 2023 and 13 July 2023. Initially, the parties were looking to explore the possibility of resolving the objection by agreement and, in order to allow time for that to occur, I extended the directions timetable by six weeks.

3. A further conference was to be held on 10 August 2023, but was adjourned due to Mr McClaren changing his representative. An additional six-week extension was granted at that time. By 18 September, Mr McClaren had changed representatives for the second time and advised the Tribunal and other parties that he wished to proceed to inquiry. On the basis of that development, I vacated the next conference and Marlinyu Ghoorlie was reminded that its contentions and evidence were due by 5 October 2023.

4. Marlinyu Ghoorlie did not comply by 5 October 2023, nor did it seek an extension of time. On 12 October 2023, the Tribunal wrote to parties advising the matter was at risk of dismissal and inviting comments by 19 October 2023. Mr McClaren responded but made no comments or submissions regarding Marlinyu Ghoorlie’s failure to comply. No comments were received from Marlinyu Ghoorlie or the State, nor did Marlinyu Ghoorlie seek any further extension.

Should the objection application be dismissed?

1. 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 application or to comply with a direction of the Tribunal: s 148(b) Native Title Act. As the Tribunal has often observed, it is for the native title party to take steps to progress an objection application within a reasonable time if it wishes to pursue it: Stock v Giralia (at page 7).

2. Marlinyu Ghoorlie has been aware of its compliance date of 5 October 2023 since directions were amended for the second time on 8 August 2023, and has been on notice that this matter would be proceeding to inquiry since 18 September 2023. Marlinyu Ghoorlie has had sufficient time to comply with directions or to seek an extension of time but has not done so. Marlinyu Ghoorlie has also been given notice that its application was at risk of dismissal but has not communicated further with the Tribunal.

3. In the circumstances outlined, I am satisfied that Marlinyu Ghoorlie’s objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to exploration licence E 16/624 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
5 December 2023