Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Rino Borromei & Anor

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Rino Borromei & Anor [2024] NNTTA 2 (23 January 2024)

Application No:

WO2023/0367

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/Marlinyu Ghoorlie)

- and -

Rino Borromei

(grantee party)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	23 January 2024

Catchwords:	Native title – future acts – proposed grant of prospecting 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, 109(1), 148(b) (the Act)
Cases:	David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (David 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:

Peter Gianni, Mining Equities

Representatives of the State:

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

REASONS FOR DETERMINATION

This is a decision made under s 148(b) of the Act, which empowers the Tribunal to dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the application or comply with a direction of the Tribunal.
On 25 January 2023, the State gave public notification of the proposed grant of a prospecting license to the grantee and included a statement that it considers the grant attracts the expedited procedure. The effect of giving such a notice is that unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith.
Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licence and a native title party for the purposes of the Act.[1]
[1] See s 30 of the Act.
On 17 May 2023, Marlinyu Ghoorlie lodged an application with the Tribunal objecting to the State’s inclusion of the expedited procedure statement to the proposed grant. As a result, unless the application is withdrawn or dismissed, the Tribunal is required to determine whether the grant is an act attracting the expedited procedure.[2]

Native title party’s failure to proceed with the application or comply with directions of the Tribunal

[2] See s 32(4) of the Act.

Following lodgement and acceptance of the objection by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. On 25 August 2023, the Tribunal and all parties were informed that the grantee wished to proceed to inquiry and determination.
The directions in place in this inquiry were amended on several occasions at the request of, and in consultation with, the parties. In accordance with the amended directions made in December 2023, Marlinyu Ghoorlie’s contentions and evidence were due on or before 15 December 2023. No contentions and evidence were received for the native title party by this date, nor was any further request for extension made.
On 8 January 2024, the Tribunal emailed all parties noting Marlinyu Ghoorlie had failed to comply, and that the objection was now at risk of dismissal under s 148(b) of the Act. The email outlined (emphasis in original):
In the notification email, parties were advised:
If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.
Parties are now on notice this matter is at risk of dismissal. The native title party has until 15 January 2023, to provide reasons as to why compliance has not been met, and request any further time, for Member Eaton’s consideration and party input. Further time will not automatically be granted. If there is no response on or by the 15 January 2024, this matter will be referred back to Member Eaton for consideration of dismissal.
On 22 January 2024, as Marlinyu Ghoorlie had failed to lodge its evidence in compliance with the amended directions, and no response or further extension request had been received, the Tribunal wrote to all parties and confirmed that the matter would be proceeding to dismissal.

Power of Tribunal under s 148

The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[3] Under s 148(b) the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the applicant 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, it is not an action to be taken lightly.
[3] See s 109(1) of the Act.
In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[4] I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.
[4] Teelow v Page at [13].
Once an objection application is made it is incumbent on the objector to progress the application and to communicate with the Tribunal and all parties. In David Stock v Giralia, the Tribunal outlined this principle:[5]
It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.
[5] David Stock v Giralia at 6-7.
In this matter Marlinyu Ghoorlie have failed to progress the objection application within a reasonable period despite being afforded reasonable opportunities to do so.
Having regard to all the facts and circumstances, I am satisfied that the objection application should be dismissed.

Determination

The expedited procedure objection application in relation to P26/4684 is dismissed pursuant to s 148(b) of the Act.

Ms Lisa Eaton
Member
23 January 2024

The National Native Title Tribunal (NNTT) was asked to decide on an objection by the Marlinyu Ghoorlie native title party against the State of Western Australia's proposed grant of a prospecting licence to Rino Borromei. The State had notified the public of the proposed grant, stating that it considered the grant attracted the expedited procedure, meaning the grant could proceed without requiring negotiation in good faith with the native title party if no objection was lodged. Marlinyu Ghoorlie, who had native title rights over the land to be affected, lodged an objection to the State's expedited procedure statement, thereby triggering a requirement for the NNTT to determine whether the grant was subject to the expedited procedure.

The legal issues before the NNTT were whether the objection application should be dismissed under section 148(b) of the Native Title Act 1993 (Cth) due to Marlinyu Ghoorlie's failure to proceed with the application or comply with the directions of the Tribunal. The NNTT had issued several directions for the parties to provide contentions and evidence for the conduct of the inquiry. These directions were amended multiple times at the request of, and in consultation with, the parties. The native title party was required to submit its contentions and evidence by 15 December 2023. However, Marlinyu Ghoorlie did not provide any contentions or evidence by this date, nor did it request an extension of time. The Tribunal warned the parties that the objection was at risk of dismissal, giving Marlinyu Ghoorlie until 15 January 2024 to provide reasons for non-compliance and request further time. As Marlinyu Ghoorlie did not respond, the Tribunal proceeded to dismiss the objection.

The NNTT held that it has broad discretion to dismiss an objection application under section 148(b) of the Act but emphasised that such a decision should not be made lightly. The NNTT noted the principle from Teelow v Page that the objector must progress the application and communicate with the Tribunal and all parties within a reasonable time. The Tribunal considered the circumstances and found that Marlinyu Ghoorlie had failed to progress the objection application within a reasonable period despite being given ample opportunities to do so. Consequently, the NNTT dismissed the objection application. The decision was made in accordance with the objective of the Tribunal to conduct its functions in a fair, just, economical, informal, and prompt manner.

The NNTT dismissed the expedited procedure objection application lodged by Marlinyu Ghoorlie and ordered that the objection application in relation to P26/4684 was dismissed pursuant to section 148(b) of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established