Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Mandilla Gold Pty Ltd and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Mandilla Gold Pty Ltd and Another [2023] NNTTA 35 (11 October 2023)

Application No:

WO2023/0386; WO2023/0387

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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Mandilla Gold Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	11 October 2023

Catchwords:	Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – expedited procedure objection applications 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:

Ettienne van Tonder, Austwide Legal Pty Ltd

Representative of the Government party:

Paola O’Neill, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

Mandilla Gold Pty Ltd has applied for the grant of two prospecting licences in the Goldfields region of Western Australia. The State of Western Australia considers the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth).
Each 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 licences. The Tribunal is therefore required to determine whether the expedited procedure applies: s 32(4) Native Title Act.
Marlinyu Ghoorlie has not complied with the Tribunal’s directions, despite being afforded a reasonable time in which to do so. For the reasons that follow, I have dismissed Marlinyu Ghoorlie’s objection applications.

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

On 25 May 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 each licence. In accordance with those directions, Marlinyu Ghoorlie’s contentions and evidence were due to be provided on or before 29 June 2023.
A preliminary conference was held on 1 June 2023. Mandilla Gold did not attend the conference, however, Marlinyu Ghoorlie advised that it hoped to resolve the objection applications by incorporating the licences into an existing heritage agreement. The State provided its initial material on 2 June 2023 in accordance with the timetable.
By the time of the next conference on 22 June 2023, Mandilla Gold’s representative had been instructed, and the parties were continuing to consider reliance on the existing agreement. To allow time for an agreement to be resolved, and with the support of all parties, I extended the directions timetable by six weeks. Two further conferences were held in July to review the parties’ progress towards an agreement and parties appeared reasonably confident the matters could be resolved with little difficulty.
Marlinyu Ghoorlie did not comply by its revised due date of 10 August 2023, nor did it seek an extension of time. On 18 August 2023, the Tribunal wrote to parties advising the matters were at risk of dismissal and inviting comments by 25 August 2023.
No comments were received from Marlinyu Ghoorlie or the State. However, on 24 August 2023, Mandilla Gold’s representative wrote to the Tribunal to advise that it had been unsuccessful in its efforts to contact Marlinyu Ghoorlie to discuss the agreement and that, while it remains committed to an agreement, it seeks dismissal of the objection applications to avoid further costs.

Should the objection applications be dismissed?

The Tribunal has a broad discretion to 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. The Tribunal has observed on many occasions that 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).
Marlinyu Ghoorlie has been given notice that its applications were at risk of dismissal but has not communicated further with the Tribunal. Importantly, Marlinyu Ghoorlie has not provided any reason for its delay, nor sought any additional time for compliance.
Having regard to all the facts and circumstances, I am satisfied that Marlinyu Ghoorlie’s objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licences are acts attracting the expedited procedure.

Decision

The expedited procedure objection applications in relation to prospecting licences P 15/6759 and P 15/6760 are dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
11 October 2023

The National Native Title Tribunal recently dismissed objection applications by Marlinyu Ghoorlie against the application of the expedited procedure to the grant of two prospecting licences by Mandilla Gold Pty Ltd in the Goldfields region of Western Australia. The State of Western Australia considers these grants to be acts that trigger the expedited procedure under the Native Title Act 1993 (Cth). Marlinyu Ghoorlie, the native title party, objected to the application of the expedited procedure, prompting the Tribunal to determine whether the procedure applies in this case. The Tribunal found that Marlinyu Ghoorlie had failed to comply with directions and, despite being given notice that its applications were at risk of dismissal, did not communicate further with the Tribunal or provide any reasons for its delay.

The primary legal issue before the Tribunal was whether the grant of prospecting licences P 15/6759 and P 15/6760 by Mandilla Gold Pty Ltd to the State of Western Australia constituted acts that attract the expedited procedure under the Native Title Act. Additionally, the Tribunal had to decide whether Marlinyu Ghoorlie's objection applications should be dismissed due to its failure to comply with the Tribunal's directions. The case hinged on the interpretation and application of sections 32 and 148 of the Native Title Act, as well as the precedent set in the case of David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL.

The Tribunal considered the failure of Marlinyu Ghoorlie to comply with its directions as a significant factor in dismissing the objection applications. Despite being granted additional time to comply with the directions, Marlinyu Ghoorlie did not provide any evidence or contentions by the revised due date. Furthermore, the Tribunal noted that Marlinyu Ghoorlie had not communicated with the Tribunal or provided any reasons for its delay. The Tribunal exercised its broad discretion under section 148(b) of the Native Title Act, finding that the native title party had not proceeded with the application or complied with the Tribunal’s direction within a reasonable time. This decision aligns with the precedent that it is the responsibility of the native title party to progress an objection application if it wishes to pursue it.

In conclusion, the National Native Title Tribunal dismissed the objection applications by Marlinyu Ghoorlie, finding that they were not pursued within a reasonable time. The Tribunal held that Marlinyu Ghoorlie's failure to comply with its directions, without any communication or justification, warranted the dismissal of the objection applications. Consequently, the Tribunal did not need to determine whether the grant of the prospecting licences attracted the expedited procedure. The decision underscores the importance of native title parties adhering to the Tribunal’s directions and timelines to avoid the dismissal of their applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established