Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Robert Russell Way and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Robert Russell Way and Another [2024] NNTTA 31 (9 May 2024)

Application No:

WO2023/0945

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 -

Robert Russell Way

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	9 May 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:

Robert Way

Representative of the Government party:

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

REASONS FOR DECISION

Robert Russell Way has applied for the grant of a prospecting licence (P 77/4647) in the South West 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 Marlinyu Ghoorlie’s objection application be dismissed?

I convened a preliminary conference in this matter on 22 February 2024. At that conference, Mr Way advised that he would like the Tribunal to proceed with its inquiry in relation to whether the expedited procedure applies to the grant of the licence.
With the agreement of all parties, I made directions for the conduct of the Tribunal’s inquiry based on a standard timetable calculated from the closing date for objections for this licence. Under those directions, Marlinyu Ghoorlie’s contentions and evidence were due to be provided by 23 April 2024.
Marlinyu Ghoorlie did not comply by 23 April 2024, nor did it seek an extension of time. On 30 April 2024, the Tribunal wrote to all parties advising the matter was at risk of dismissal, inviting comments by 7 May 2024. Mr Way provided brief comments on 1 May 2024 supporting the dismissal of the objection application. No comments were received from Marlinyu Ghoorlie or the State.
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).
In this case, Marlinyu Ghoorlie had been on notice of its due date for compliance since the preliminary conference on 22 February 2024 and had agreed to the directions being made in accordance with the standard timetable. There is nothing to indicate that Marlinyu Ghoorlie has taken any steps to comply, nor has it sought any extension of time.
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 77/4647 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
9 May 2024

The National Native Title Tribunal heard an objection application brought by Henry Richard Dimer and others on behalf of the Marlinyu Ghoorlie native title party against the proposed grant of a prospecting licence to Robert Russell Way. The licence is located within the Marlinyu Ghoorlie native title determination application area in Western Australia. 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 Marlinyu Ghoorlie objects. The Tribunal was required to determine whether the grant of the licence triggers the expedited procedure under the Native Title Act. The central issue was whether the objection application should be dismissed due to Marlinyu Ghoorlie’s failure to comply with the Tribunal’s directions.

The Tribunal held a preliminary conference on 22 February 2024, where directions were made for the conduct of the inquiry, with Marlinyu Ghoorlie required to provide its contentions and evidence by 23 April 2024. Marlinyu Ghoorlie did not comply with this direction, nor did it seek an extension of time. The Tribunal subsequently wrote to the parties on 30 April 2024, advising that the matter was at risk of dismissal and inviting comments by 7 May 2024. Robert Way provided comments in support of dismissing the objection application on 1 May 2024. No comments were received from Marlinyu Ghoorlie or the State. The Tribunal found that the failure to comply with the directions and the lack of any steps taken to progress the objection application justified the dismissal of the objection application under section 148(b) of the Native Title Act. Consequently, the Tribunal dismissed the objection application without determining whether the grant of the licence is an act attracting the expedited procedure.

The Tribunal dismissed the objection application under section 148(b) of the Native Title Act. The dismissal was based on Marlinyu Ghoorlie’s failure to comply with the Tribunal’s directions and its lack of any steps to progress the objection application within a reasonable time. This decision obviates the need to determine whether the grant of the prospecting licence triggers the expedited procedure under the Native Title Act. The dismissal was final and no further action on the objection application will be considered by the Tribunal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established