Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Neville John Dickerson and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Neville John Dickerson and Another [2024] NNTTA 18 (21 March 2024)

Application No:

WO2023/0656

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)

- and -

Neville John Dickerson

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	21 March 2024

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

Jessie Polmear

Representative of the Government party:

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

REASONS FOR DECISION

Neville John Dickerson has applied for the grant of a prospecting licence (P 24/5653) in the Goldfields region of Western Australia. The licence is located wholly within the area of the Marlinyu Ghoorlie native title determination application (WAD647/2017) (Marlinyu Ghoorlie Claim).
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), a proposition to which the registered native title claimant for the Marlinyu Ghoorlie Claim (Marlinyu Ghoorlie) objects.
The Tribunal’s role is to determine whether or not the expedited procedure applies: s 32(4) Native Title Act. However, Marlinyu Ghoorlie has failed to comply with the Tribunal’s directions and, for the reasons that follow, I have dismissed Marlinyu Ghoorlie’s objection application.

Why should the objection application be dismissed?

At a directions hearing on 15 November 2023 the Tribunal made directions for the conduct of an inquiry into whether the expedited procedure applies, taking into account issues raised by Marlinyu Ghoorlie regarding its existing commitments from December 2023 through to early February 2024. Under those directions, Marlinyu Ghoorlie’s contentions and evidence were due to be provided by 22 February 2024.
Marlinyu Ghoorlie did not comply by 22 February 2024, nor did it seek an extension of time. On 27 February 2024, the Tribunal wrote to all parties advising the matter was at risk of dismissal, inviting comments by 5 March 2024. On 28 February 2024, Mr Dickerson’s representative provided brief comments supporting the dismissal of the objection application in light of Marlinyu Ghoorlie’s failure to provide contentions and evidence by the due date. No comments were received from Marlinyu Ghoorlie or the State.
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. 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).
In this case, Marlinyu Ghoorlie has been on notice of its due date for compliance since November 2023 and the timetable for directions took account of its availability. There is nothing to indicate that Marlinyu Ghoorlie has taken any steps to comply, nor has it sought any extension of time or communicated further with the Tribunal.
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

The expedited procedure objection application in relation to prospecting licence P 24/5653 is dismissed under s 148(b) of the Native title Act.

Ms Nerida Cooley
Member
21 March 2024

In the National Native Title Tribunal, Henry Richard Dimer and others on behalf of the Marlinyu Ghoorlie native title group sought to object to an expedited procedure application concerning a proposed prospecting licence (P 24/5653) sought by Neville John Dickerson in the Goldfields region of Western Australia. The application for the prospecting licence is situated within the area of the Marlinyu Ghoorlie native title determination application. The State of Western Australia considers the grant of the licence to be an act attracting the expedited procedure under the Native Title Act 1993 (Cth), a proposition to which the Marlinyu Ghoorlie group objects. The Tribunal was required to determine whether the expedited procedure applied, in accordance with section 32(4) of the Native Title Act. However, the Marlinyu Ghoorlie group did not comply with the Tribunal's directions, leading to the dismissal of their objection application.

The legal issue the Tribunal had to decide was whether the Marlinyu Ghoorlie group's objection application should be dismissed due to their failure to comply with the Tribunal's directions. The Tribunal had previously issued directions at a directions hearing on 15 November 2023, stipulating that the Marlinyu Ghoorlie group's contentions and evidence were due by 22 February 2024. The Marlinyu Ghoorlie group did not comply with this directive, nor did they seek an extension of time. Following this non-compliance, the Tribunal wrote to all parties on 27 February 2024, advising that the matter was at risk of dismissal and requesting comments by 5 March 2024. Mr Dickerson's representative provided comments in support of the dismissal of the objection application due to the Marlinyu Ghoorlie group's failure to provide contentions and evidence by the due date. The Tribunal exercised its discretion under section 148(b) of the Native Title Act to dismiss the objection application, noting that it was for the Marlinyu Ghoorlie group to take steps to progress the application within a reasonable time.

The Tribunal concluded that the Marlinyu Ghoorlie group's objection application should be dismissed. The decision noted that the Marlinyu Ghoorlie group had been aware of their compliance due date since November 2023, and the directions timetable had taken into account their availability. The Tribunal found no evidence that the Marlinyu Ghoorlie group had taken any steps to comply with the directions, sought an extension of time, or communicated further with the Tribunal. Consequently, the Tribunal dismissed the objection application without determining whether the grant of the prospecting licence was an act attracting the expedited procedure.

The final orders of the Tribunal were that the expedited procedure objection application in relation to prospecting licence P 24/5653 was dismissed under section 148(b) of the Native Title Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established