Henry Richard Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v Andrew Roy White & Anor

[2024] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v Andrew Roy White & Anor [2024] NNTTA 60 (14 August 2024)

Application No: WO2024/0216 & WO2024/0217

IN THE MATTER of an inquiry into an expedited procedure objection application

Henry Richard Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group (WC2017/007)

(native title party/Marlinyu Ghoorlie)

- and -

Andrew Roy White

(grantee party)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	14 August 2024

Catchwords:

Native title – future acts – proposed grant of prospecting licences – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 30, 32, 109(1), 148(b) (the NTA)

Cases:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representative of the native title party:

Rachel McGarry, Houston Legal & Consultants

Representative of the grantee party: Andrew Roy White

Representative of the Government party: Andrea Pearce, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

1. This is a decision made under s 148(b) of the NTA, which empowers the Tribunal to dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails, within a reasonable time, to proceed with the application or comply with a direction of the Tribunal.

2. The State gave public notification of the proposed grant of two prospecting licences to the grantee,[1] and included a statement that it considers the grant attracts the expedited procedure.[2]  The effect of giving such a notice is that unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith.

   [1] P 77/4648 & P 77/4649.

   [2] See s 29 of the NTA.

3. Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licence and a native title party for the purposes of the NTA.[3]  In this capacity, the legal representative for Marlinyu Ghoorlie lodged an objection application to the State’s inclusion of the expedited procedure statement.  As a result, unless the application is withdrawn or dismissed, the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.[4]

   [3] See s 30 of the NTA.

   [4] See s 32(4) of the NTA.

Native title party’s failure to proceed

1. Following acceptance of the objection application by the Tribunal, I made directions in April 2024 requiring all parties to provide contentions and evidence for the conduct of the inquiry.  In accordance with those directions, Marlinyu Ghoorlie’s contentions and evidence were due on or before 26 July 2024.  No contentions or evidence were received by this date, nor was any request for an extension of time made for Marlinyu Ghoorlie.

2. On 2 August 2024, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply, and that the objection was now at risk of dismissal under s 148(b) of the NTA. Marlinyu Ghoorlie was given until 9 August 2024 to provide a response or request further time. The other parties were also invited to provide any comments.

3. On 1 August 2024, the Tribunal received correspondence from the grantee party requesting additional time to provide his evidence and contentions noting the native title party’s failure to comply and seeking that the matter be dismissed.  No other response, including from Marlinyu Ghoorlie, was received.

Consideration of dismissal

1. Under s 148(b) the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.

2. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[5]  I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  The Tribunal must also pursue the objective of carrying out its functions in a fair, just, economical, informal, and prompt way.[6] 

   [5] Teelow v Page at [13].

   [6] See s 109(1) of the NTA.

3. Once an objection application is made it is incumbent on the objector, in this case Marlinyu Ghoorlie, to progress the application and to communicate with the Tribunal and all parties.[7] 

   [7] Stock v Giralia, 6-7.

4. Marlinyu Ghoorlie have failed to progress the objection application within a reasonable period despite being afforded sufficient opportunity.  They have failed to comply with directions set by the Tribunal, they have not provided any reason for their non-compliance, and no request for an extension of time has been made. 

1. Unfortunately, Marlinyu Ghoorlie have failed to progress over 90 objection applications in the last 12 months leading to dismissal in similar circumstances.[8]  Marlinyu Ghoorlie must carefully consider its obligation to promptly progress its objection applications in any future applications it wishes to make or pursue.  When directions are seemingly ignored by the applicant to the matter, without explanation and despite follow up, the resources wasted by the Tribunal and all parties to that application cannot and should not be overlooked.  

   [8] Tribunal records show 99 objection applications filed by Marlinyu Ghoorlie have been dismissed in the period of 14 August 2023 to 14 August 2024.

2. Having regard to all the facts and circumstances, I am satisfied that the objection application should be dismissed.  I strongly encourage Marlinyu Ghoorlie consider its conduct in all matters before the Tribunal moving forward.

Decision

1. The expedited procedure objection application in relation to P 77/4648 & P 77/4649 is dismissed pursuant to s 148(b) of the NTA.

Lisa Eaton
Member

14 August 2024