Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Victoria Louise Ward and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Victoria Louise Ward and Another [2024] NNTTA 14 (5 March 2024)

Application No:

WO2023/0766

IN THE MATTER of the Native Title Act 1993 (Cth)

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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)

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Victoria Louise Ward

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	5 March 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:

Victoria Ward

Representative of the Government party:

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

REASONS FOR DECISION

Victoria Louise Ward has applied for the grant of prospecting licence (P 26/4701) in the Goldfields 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 the objection application be dismissed?

At a conference of all parties on 16 November 2023, Ms Ward advised that, having reviewed Marlinyu Ghoorlie’s proposed heritage protection agreement, she would prefer that the Tribunal proceed with its inquiry into whether the expedited procedure applies to the grant of the licence. Marlinyu Ghoorlie indicated that directions made on the standard timetable, calculated from the closing date for objections in respect of the licence, would allow it sufficient time to provide its contentions and evidence. I made directions in those terms, under which Marlinyu Ghoorlie’s material was due by 8 February 2024.
Marlinyu Ghoorlie did not comply by 8 February 2024, nor did it seek any extension of time. On 19 February 2024, the Tribunal wrote to the parties advising the matter was at risk of dismissal, inviting Marlinyu Ghoorlie to provide any reasons for non-compliance and make any extension request by 26 February 2024. No response was received.
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. The Tribunal has repeatedly observed that it is for the native title party 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, Marlinyu Ghoorlie has been on notice of its due date for compliance since November 2023. 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 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 26/4701 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
5 March 2024

The National Native Title Tribunal heard an application from Henry Richard Dimer and others on behalf of the Marlinyu Ghoorlie native title group, who objected to the grant of a prospecting licence by Victoria Louise Ward, located within the Marlinyu Ghoorlie native title determination area in Western Australia. The State of Western Australia argued that the grant of the licence qualified as an act attracting the expedited procedure under the Native Title Act 1993, a claim opposed by the Marlinyu Ghoorlie. The tribunal was tasked with determining whether the expedited procedure applied to the grant of the licence.

The primary legal issue before the tribunal was whether the objection application by the Marlinyu Ghoorlie should be dismissed due to their failure to comply with the tribunal’s directions. The tribunal noted that the Marlinyu Ghoorlie had not complied with the directions set for the submission of their material by 8 February 2024, despite being notified of the due date since November 2023. The tribunal had warned the Marlinyu Ghoorlie that their application was at risk of dismissal if they did not comply with the directions or provide a reason for non-compliance by 26 February 2024. Given the Marlinyu Ghoorlie’s failure to respond, the tribunal considered whether the application should be dismissed under section 148(b) of the Native Title Act.

The tribunal dismissed the objection application, finding that the Marlinyu Ghoorlie had not taken any steps to comply with the tribunal’s directions and had not sought an extension of time or communicated further with the tribunal. The tribunal emphasised that it was the responsibility of the native title party to proceed with the objection application within a reasonable time if they wished to pursue it. As the Marlinyu Ghoorlie had not done so, the tribunal was satisfied that their objection application should be dismissed. Consequently, the tribunal did not need to determine whether the grant of the prospecting licence was an act attracting the expedited procedure.

The tribunal ordered the dismissal of the expedited procedure objection application in relation to prospecting licence P 26/4701 under section 148(b) of the Native Title Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established