Henry Richard Dimer & Others on behalf of Marlinyu Ghoorlie v Jackadder Resources Pty Ltd & Another

[2023] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Others on behalf of Marlinyu Ghoorlie v Jackadder Resources Pty Ltd & Another [2023] NNTTA 30 (4 September 2023)

Application No: WO2023/0438

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

(native title party)

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Jackadder Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	4 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 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: Greg Robinson, Jackadder Resources Pty Ltd

Representative of the Government party: Paola O’Neill, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. Jackadder Resources Pty Ltd has applied for the grant of a prospecting licence in the Goldfields region of Western Australia. 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).

2. The licence is located wholly within the area of the Marlinyu Ghoorlie native title determination application (WAD647/2017) (Marlinyu Ghoorlie Claim) and the registered native title claimant for the Marlinyu Ghoorlie Claim (Marlinyu Ghoorlie) objects to the application of the expedited procedure. The Tribunal is therefore required to determine whether or not the expedited procedure applies: s 32(4) Native Title Act.

3. Marlinyu Ghoorlie has not complied with the Tribunal’s directions, despite being afforded a reasonable time in which to do so. For the reasons that follow, I have dismissed Marlinyu Ghoorlie’s objection application.

What steps has Marlinyu Ghoorlie taken to comply with the Tribunal’s directions?

1. On 31 May 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry into whether the expedited procedure applies to the grant of the licence. In accordance with those directions, Marlinyu Ghoorlie’s material was due to be provided on or before 27 July 2023.

2. A preliminary conference was held on 15 June 2023 to ascertain the parties’ intentions, including whether or not they were looking to resolve the objection application by agreement. Jackadder advised that it would like the Tribunal to proceed with the inquiry and Marlinyu Ghoorlie indicated that it should be in a position to comply with the directions timetable. No further conference was scheduled. Jackadder’s position was later confirmed in writing by email dated 26 June 2023. The Tribunal then wrote to all parties on 28 June 2023 confirming that the Tribunal would proceed to hold an inquiry into this matter and parties were reminded of the directions timetable.

3. The State provided its initial material on 6 July 2023 in accordance with the timetable. However, Marlinyu Ghoorlie did not comply by its due date of 27 July 2023, nor did it seek an extension of time.

4. On 2 August 2023, the Tribunal wrote to all parties advising that the objection application was at risk of dismissal. Parties were invited to provide any comments by 9 August 2023. On 9 August 2023, the Tribunal received comments from Jackadder requesting that the matter be dismissed. To date, no comments have been received from Marlinyu Ghoorlie or the State.

Should the objection be dismissed?

1. The Tribunal has a broad discretion to 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 observed on many occasions that 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).

2. Marlinyu Ghoorlie has been given notice that its application was at risk of dismissal but has not communicated further with the Tribunal. Importantly, Marlinyu Ghoorlie has not provided any reason for its delay, nor sought any additional time for compliance.

3. Having regard to all the facts and circumstances, 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

1. The expedited procedure objection application in relation to prospecting licence P 15/6773 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
4 September 2023