Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Timothy Edward Farmer and Others

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Timothy Edward Farmer and Others [2024] NNTTA 9 (1 March 2024)

Application No:

WO2023/0687; WO2023/0688

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)

- and -

Timothy Edward Farmer

(grantee party)

- and -

Kelsey May Farmer

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	1 March 2024

Catchwords:	Native title – future acts – proposed grant of 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

Representatives of the grantee party:

Timothy Farmer and Kelsey Farmer

Representative of the Government party:

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

REASONS FOR DECISION

Timothy Edward Farmer and Kelsey May Farmer have applied for the grant of two prospecting licences (P 16/3426 and P 16/3427) in the Goldfields region of Western Australia. Each 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 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 on 25 October 2023, the Tribunal made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry into whether the expedited procedure applies. Under those directions, Marlinyu Ghoorlie was due to provide its contentions and evidence by 5 February 2024.
Marlinyu Ghoorlie did not comply by 5 February 2024, nor did it seek an extension of time. On 14 February 2024, the Tribunal wrote to parties advising the matters were at risk of dismissal and inviting comments by 20 February 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. As the Tribunal has frequently 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 since October 2023 that its material was due on 5 February 2024. However, there is no evidence to indicate that Marlinyu Ghoorlie has taken any steps to comply, nor has it sought any extension of time or communicated with the Tribunal in relation to these objection applications, since the conference on 25 October 2023.
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 prospecting licences P 16/3426 and P 16/3427 are dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
1 March 2024

The National Native Title Tribunal recently dismissed objection applications filed by the Marlinyu Ghoorlie native title party against the proposed grant of two prospecting licences by Timothy Edward Farmer and Kelsey May Farmer. The licences, located within the Marlinyu Ghoorlie native title determination area, are considered acts attracting the expedited procedure under the Native Title Act 1993 (Cth). The Tribunal's role is to decide whether the expedited procedure applies, but Marlinyu Ghoorlie's failure to comply with the Tribunal's directions led to the dismissal of its objections.

The legal issues before the Tribunal involved determining whether the failure of Marlinyu Ghoorlie to comply with the Tribunal's directions warranted the dismissal of its objection applications under section 148(b) of the Native Title Act. Specifically, the Tribunal had to assess whether Marlinyu Ghoorlie had proceeded with its objection applications within a reasonable time and whether it had complied with the Tribunal's directions to provide contentions and evidence by 5 February 2024.

The Tribunal found that Marlinyu Ghoorlie had not complied with the directions, nor had it sought an extension of time or communicated with the Tribunal since the conference on 25 October 2023. The Tribunal noted that the failure to proceed within a reasonable time or to comply with directions is a ground for dismissal under section 148(b) of the Native Title Act. Given that Marlinyu Ghoorlie had been on notice since October 2023 and had taken no steps to comply, the Tribunal concluded that the objection applications should be dismissed.

The decision to dismiss the objection applications was based on Marlinyu Ghoorlie's failure to comply with the Tribunal's directions and its lack of communication or efforts to address the non-compliance. The Tribunal found that the failure to proceed within a reasonable time and to comply with the directions justified the dismissal of the objections under section 148(b) of the Native Title Act. As a result, the Tribunal did not need to determine whether the grant of the prospecting licences was an act attracting the expedited procedure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established