Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Steven John Rudd and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Steven John Rudd and Another [2024] NNTTA 17 (20 March 2024)

Application No:

WO2023/0639; WO2023/0640

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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Steven John Rudd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	20 March 2024

Catchwords:	Native title – future acts – proposed grant of special 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:

Steven Rudd

Representative of the Government party:

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

REASONS FOR DECISION

Steven John Rudd has applied for the grant of two special prospecting licences (P 16/3422-S and P 16/3423-S) in the Goldfields region of Western Australia. The licences are 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 each 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 applications.

Why should the objection applications be dismissed?

At a conference of all parties on 16 November 2023, Mr Rudd advised that his preference was for the Tribunal to proceed with its inquiry into whether the expedited procedure applies to the grant of the licences. Marlinyu Ghoorlie indicated that it would not be in a position to provide contentions and evidence until February 2024, due to other commitments, including an upcoming Court hearing. Taking that information into account, I made directions under which Marlinyu Ghoorlie’s material was due by 22 February 2024.
Similar to a number of its recent objection applications, Marlinyu Ghoorlie did not comply by its due date, nor did it seek any extension of time. On 28 February 2024, the Tribunal wrote to the parties advising the matters were at risk of dismissal and inviting comments by 5 March 2024. No comments were received from any party.
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. It is for Marlinyu Ghoorlie to take steps to progress its objection application within a reasonable time if it wishes to pursue it: Stock v Giralia (at page 7).
In this case, the directions timetable took account of Marlinyu Ghoorlie’s availability and it has been on notice of its due date for compliance since November 2023. Despite this, there is nothing to indicate that Marlinyu Ghoorlie has taken any steps to comply, nor has it sought an extension of time or communicated further with the Tribunal.
In the circumstances outlined, 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 each licence is an act attracting the expedited procedure.

Decision

The expedited procedure objection applications in relation to special prospecting licences P 16/3422-S & P 16/3423-S are dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
20 March 2024

In the matter of an inquiry into objections to the application of the expedited procedure under the Native Title Act 1993 (Cth), Henry Richard Dimer and others on behalf of the Marlinyu Ghoorlie native title group have lodged objections to the grant of two special prospecting licences by Steven John Rudd. The State of Western Australia supports the grant of the licences, which are located within the area of the Marlinyu Ghoorlie native title determination application. The central issue before the National Native Title Tribunal was whether the grant of these licences constitutes an act attracting the expedited procedure, and if the objections were valid. The Tribunal was also required to consider whether the objections could be dismissed due to the failure of the Marlinyu Ghoorlie group to comply with directions.

The Tribunal determined that Marlinyu Ghoorlie had not complied with the directions issued in November 2023, which required them to provide their contentions and evidence by 22 February 2024. Despite being aware of this deadline, Marlinyu Ghoorlie did not submit any material and did not seek an extension of time. The Tribunal found that this failure to comply with the directions was sufficient grounds to dismiss the objection applications under section 148(b) of the Native Title Act. The Tribunal also considered that the directions timetable had been accommodating of Marlinyu Ghoorlie's availability, and there was no indication that they had taken any steps to comply with the directions or communicate further with the Tribunal.

The Tribunal dismissed the objection applications on the basis that Marlinyu Ghoorlie had failed to comply with the directions within a reasonable time. The Tribunal noted that it was for Marlinyu Ghoorlie to take steps to progress their objection application if they wished to pursue it. The Tribunal concluded that the failure to comply with the directions was sufficient to warrant the dismissal of the objections, and it was not necessary to determine whether the grant of each licence was an act attracting the expedited procedure. The Tribunal dismissed the objection applications in relation to special prospecting licences P 16/3422-S and P 16/3423-S under section 148(b) of the Native Title Act.

The Tribunal dismissed the objection applications, and no further action is required regarding the grant of the special prospecting licences. This decision highlights the importance of compliance with the Tribunal's directions in objection applications, and the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established