Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v William John Smith and Another

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v William John Smith and Another [2024] NNTTA 15 (6 March 2024)

Application No:

WO2023/0761

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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William John Smith

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	6 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:

William Smith

Representative of the Government party:

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

REASONS FOR DECISION

William John Smith has applied for the grant of a prospecting licence (P 24/5600-S) 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 Marlinyu Ghoorlie’s objection application be dismissed?

I convened a preliminary conference in this matter on 2 November 2023. Marlinyu Ghoorlie did not appear, but Mr Smith 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.
I then made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry based on the standard timetable calculated from the closing date for objections for this licence, adjusted to account for the end of year shutdown period. Under those directions, which were provided to all parties on 10 November 2023, Marlinyu Ghoorlie’s contentions and evidence were due to be provided by 12 February 2024.
Marlinyu Ghoorlie did not comply by 12 February 2024, nor did it seek an extension of time. On 19 February 2024, the Tribunal wrote to all parties advising the matter was at risk of dismissal, inviting comments by 26 February 2024. Mr Smith provided brief comments on 26 February 2024 which appear to support the dismissal of the objection application, noting Marlinyu Ghoorlie’s initial non-appearance and failure to provide contentions and evidence. 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 November 2023. There is nothing to indicate that Marlinyu Ghoorlie has taken any steps to comply, nor has it sought any extension of time. Moreover, it does not appear that Marlinyu Ghoorlie has communicated with the Tribunal since lodging its objection application.
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 24/5600-S is dismissed under s 148(b) of the Native title Act.

Ms Nerida Cooley
Member
6 March 2024

In the National Native Title Tribunal, Henry Richard Dimer and others on behalf of Marlinyu Ghoorlie brought an objection to an expedited procedure application concerning a prospecting licence granted to William John Smith in the Goldfields region of Western Australia. The Marlinyu Ghoorlie group, the registered native title claimant, objected to the proposed grant of the prospecting licence within their native title determination area, contending that the grant of the licence did not attract the expedited procedure under the Native Title Act 1993. The State of Western Australia supported the grant of the licence, arguing that it did attract the expedited procedure. The tribunal's role was to determine whether the grant of the prospecting licence attracted the expedited procedure.

The legal issue before the tribunal was whether the objection application by Marlinyu Ghoorlie should be dismissed for failure to comply with the tribunal's directions. The tribunal issued directions requiring Marlinyu Ghoorlie to provide contentions and evidence by a specific date. Marlinyu Ghoorlie failed to comply with these directions and did not seek an extension of time. The tribunal considered whether it was appropriate to dismiss the objection application under section 148(b) of the Native Title Act, which allows for dismissal if the native title party fails to proceed with the application or comply with a direction within a reasonable time.

The tribunal found that Marlinyu Ghoorlie had failed to comply with the directions and had not taken any steps to proceed with the objection application. The tribunal noted that there was no evidence of communication with the tribunal since the objection application was lodged, and no extension of time had been sought. Given these circumstances, the tribunal was satisfied that the objection application should be dismissed. As a result, the tribunal did not need to determine whether the grant of the prospecting licence attracted the expedited procedure.

The tribunal dismissed the objection application under section 148(b) of the Native Title Act. The prospecting licence P 24/5600-S was not subject to the expedited procedure objection, and the application by Marlinyu Ghoorlie was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established