Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Patrick Natale Constanzo & Anor

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Patrick Natale Constanzo & Anor [2024] NNTTA 45 (17 June 2024)

Application No:

WO2023/0970, WO2023/0971, WO2023/0972

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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Patrick Natale Costanzo

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	17 June 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:	David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTA 333 (Stock v Giralia) Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)
Representative of the native title party:	Rachel McGarry, Houston Legal & Consultants

Representative of the grantee party:

Patrick Natale Costanzo

Representatives of the Government party:

Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

On 15 November 2023, 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 24/5689, P 24/5698 and P 24/5696 to Patrick Natale Constanzo. The s 29 notice included a statement that the State considers the grant of the proposed licences 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 licences without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.
The proposed licences are located north of Coolgardie and each of the proposed licences sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).
On 29 November 2023, the legal representative for 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

Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in these matters.
On 20 March 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry, with Marlinyu Ghoorlie directed to provide their contentions and evidence by 8 May 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.
On 14 May 2024, the Tribunal emailed all parties, noting that Marlinyu Ghoorlie had failed to comply and that the objections were now at risk of dismissal. Parties were given until close of business 21 May 2024 to provide a response. No response was received from Marlinyu Ghoorlie by this time.

Consideration of Dismissal

Pursuant to 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 to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal's decision in Teelow v Page ([13]). I have applied those principles in my consideration of these matters.
On this occasion, it is my view that Marlinyu Ghoorlie has been afforded sufficient opportunity to progress these objection applications but has 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 these matters, I am satisfied that the objection applications should be dismissed.

Determination

The expedited procedure objection applications in relation to P 24/5689, P 24/5695, and P 24/5696 are dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
17 June 2024

The National Native Title Tribunal faced an application from Henry Richard Dimer and others on behalf of Marlinyu Ghoorlie, objecting to the proposed grant of prospecting licences by the State of Western Australia to Patrick Natale Constanzo. The proposed licences were situated within the Marlinyu Ghoorlie's registered native title claim area. The core issue before the Tribunal was whether the grant of these licences qualified for the expedited procedure under the Native Title Act 1993, thereby allowing the State to bypass the right to negotiate process. The Tribunal was tasked with determining if the objections lodged by Marlinyu Ghoorlie were valid and whether they should proceed under the expedited procedure.

The legal issues centred on whether the proposed grants were acts attracting the expedited procedure and whether the objections from Marlinyu Ghoorlie were justified. Additionally, the Tribunal had to consider whether Marlinyu Ghoorlie had complied with the procedural directions set by the Tribunal, which were crucial for the continuation of the objection applications. The Tribunal's decision hinged on the interpretation of the Native Title Act and its previous rulings on similar matters, such as in Teelow v Page, which provided guidance on the dismissal of objection applications for non-compliance with directions.

In reaching its decision, the Tribunal highlighted that Marlinyu Ghoorlie had been given ample opportunity to comply with the procedural directions but had failed to do so. The Tribunal noted that the objections were at risk of dismissal due to Marlinyu Ghoorlie's non-compliance with the set deadlines for submitting contentions and evidence. Despite the significant consequences of dismissal, the Tribunal concluded that the failure to comply with directions and the lack of any reasonable explanation justified the dismissal of the objection applications. Consequently, the Tribunal exercised its discretion under s 148(b) of the Native Title Act to dismiss the objections, allowing the proposed grant of prospecting licences to proceed under the expedited procedure.

The final orders of the Tribunal were to dismiss the objection applications lodged by Marlinyu Ghoorlie in relation to the proposed prospecting licences P 24/5689, P 24/5695, and P 24/5696. This decision meant that the State of Western Australia could proceed with granting these licences without entering into the right to negotiate process with Marlinyu Ghoorlie.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established