Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie v Sean Church and Another

[2023] NNTTA 28

NATIONAL NATIVE TITLE TRIBUNAL

Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie v Sean Church and Another [2023] NNTTA 28 (28 August 2023)

Application No: WO2023/0434

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

Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party)

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Sean Church

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	28 August 2023

Catchwords:

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

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 109(1), 148(b)

Cases:

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

Representative of the grantee party: Sean Church

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

REASONS FOR DETERMINATION

Background

1. On 22 December 2017, Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie (Marlinyu Ghoorlie) applied for a native title determination pursuant to the Native Title Act 1993 (Cth) (the Act). On 28 March 2019, the claim was entered on the Register of Native Title Claims.

2. On 8 February 2023, in accordance with s 29 of the Act, the State of Western Australia (State) gave notice of its intention to grant prospecting license P15/6661 (license) to Sean Church (grantee). The s 29 notice included a statement that the State considers the grant of the proposed licence is a future act attracting the expedited procedure.

3. If the expedited procedure applies, then the State may grant the proposed licence without first requiring all the parties to negotiate in good faith about the grant in accordance with s 31 of the Act.

4. The proposed license is located approximately 18 km south-west of Coolgardie, Western Australia, and is approximately 1.8 sq km in size.  The licence area is 100% overlapped by the Marlinyu Ghoorlie claim.

5. On 17 May 2023, Marlinyu Ghoorlie, as the relevant native title party, lodged an objection application to the State’s inclusion of the expedited procedure statement with the National Native Title Tribunal (Tribunal). Under s 32(4) of the Act, following such an objection, the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure. I was appointed by the President of the Tribunal to constitute the Tribunal for the purposes of this inquiry.

Relevant Facts

1. On 6 June 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  On 7 July 2023, the Tribunal convened a preliminary conference in this matter.  The representatives for Marlinyu Ghoorlie and the grantee party both failed to attend this conference.  The grantee party wrote to the Tribunal, via email, later that day advising:

   I would like to apologise to the parties for not being on the call this morning for the intial [sic] hearing re P15/6661. I am currently working remotely and the signal this morning was intermittent at best, hence I could not attend the conference call.

   I am familiar with the process, and would like to continue with the expedited process. I have no further matters to raise at this stage

   Many thanks and apologies for the inconvenience to the Member and the NT party.

2. On 13 July 2023, the Tribunal emailed all parties noting the grantee party’s position and confirming it was the Tribunal’s understanding that this matter would be proceeding to inquiry.  The Tribunal also noted that in accordance with the directions issued in this matter, Marlinyu Ghoorlie’s contentions and evidence were due later that day on 13 July 2023. The contentions were not received by this date, nor was any request for extension made for the native title party.

3. On 19 July 2023, 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 Act. The email outlined (emphasis in original):

   Parties were advised in the notification email: If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.

   Parties are now on notice this matter is at risk of dismissal. The native title party has until 26 July 2023 to provide reasons as to why compliance has not been met and request any further time, for the Member’s consideration and party input. Further time will not automatically be granted. If there is no response on or by 26 July 2023, the matter will be referred back to Member Eaton for consideration of dismissal.

4. No response was received by 26 July 2023.  On 27 July 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. The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[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.

   [1] See s 109(1) of the Act.

2. While the Tribunal has broad discretion to dismiss an objection application, it is not an action to be taken lightly. As a consequence of the dismissal of objection applications, native title parties will have no right to negotiate with respect to the doing of the act and the act may be undertaken validly.

3. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[2] I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  Once an objection application is made it is incumbent on the objector to progress the application and to communicate with the Tribunal and all parties.  In David Stock v Giralia, the Tribunal outlined this principle:[3]

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

   [2] Teelow v Page, at [13]. 

   [3] David Stock v Giralia at page 6-7.

4. In this matter Marlinyu Ghoorlie have failed to progress the objection application within a reasonable period of time, 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.

5. Having regard to all of the facts and circumstances, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to P15/6661 is dismissed pursuant to s 148(b) of the Act.

Ms Lisa Eaton
Member
28 August 2023