Henry Richard Dimer & Others on behalf of Marlinyu Ghoorlie v Andrew Roy White & Another

[2023] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Others on behalf of Marlinyu Ghoorlie v Andrew Roy White & Another [2023] NNTTA 31 (26 September 2023)

Application No: WO2023/0441

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

- and -

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

Henry Richard Dimer & Others on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party)

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Andrew Roy White

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	26 September 2023

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 29, 31, 32, 148(b)

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)

Representatives(s) of the native title party:

Rachel McGarry, Houston Legal

Representative(s) of the grantee party: Andrew Roy White

Representatives(s) of the Government party: Andrea Wyles and David Crabtree, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

1. On 22 March 2023, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P 77/4634 (proposed licence) to Andrew Roy White (grantee party). The s 29 notice included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant the proposed licence without requiring parties to enter into the right to negotiate procedure per s 31 of the NTA.

3. The proposed licence area is approximately 1.67 km² in size and is located approximately 8.5km in a southerly direction from Southern Cross in Western Australia. The proposed licence sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017) (native title party).

4. On 21 May 2023, the legal representative for the native title party lodged an objection with the National Native Title Tribunal (Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence.

5. The objection application was lodged within the timeframe outlined in s 32(3) of the NTA and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter. 

2. On 12 June 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Per those directions, the native title party was directed to provide its contentions and evidence by 28 August 2023.

3. On 5 July 2023, I convened a preliminary conference which all parties attended. The grantee party indicated they had provided a Regional Standard Heritage Agreement (RSHA) to the native title party approximately seven months ago and had yet to receive a response. The native title party confirmed they had received the RSHA and were seeking instructions from their clients. The native title party noted that there had been a recent change of representation causing a delay in negotiations. 

4. On 2 August 2023, I convened a directions hearing in which the native title party was absent. The grantee party confirmed that they wished to proceed to inquiry. At this time, directions remained as set and it was left to the parties to provide their evidence and contentions.

5. On 29 August 2023, the Tribunal wrote to all parties noting that the native title party had failed to comply with the directions and the objection was now at risk of dismissal per s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business, 4 September 2023. No response was received from any party to the inquiry. On 11 September 2023, the Tribunal wrote to all parties and confirmed that no comments had been received and the matter would proceed to dismissal.

Consideration of Dismissal

1. Under s 148(b) of the NTA, 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 objection application or to comply with a direction of the Tribunal.

2. While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal’s decision in Teelow v Page ([13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (s 148(b) NTA; Stock v Giralia p 7).

5. Having regard to all of the facts and circumstances of this matter, the native title party has been provided with sufficient opportunity to comply with directions set by the Tribunal. I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to the grant of prospecting licence P 77/4634 is dismissed pursuant to s 148(b) of the NTA.

Mr G Kelly
Member
26 September 2023