Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v Mining Equities Pty Ltd

[2019] NNTTA 123

NATIONAL NATIVE TITLE TRIBUNAL

Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v Mining Equities Pty Ltd & Anor [2019] NNTTA 123 (18 December 2019)

Application No: WO2019/0988

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

Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party)

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Mining Equities Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	18 December 2019

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss29, 31, 32, 148(b)

Cases:

Teelow v Page [2001] NNTTA 107; 166 FLR 266

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Mr Simon Blackshield

Representative of the grantee party: Mining Equities Pty Ltd

Representative of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licence E77/2597 (licence) to Mining Equities Pty Ltd (grantee party). The notification day was 17 July 2019. The s 29 notice included a statement that the State considers the grant of the 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 licence without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed licence overlaps the area of the registered native title application made by the Marlinyu Ghoorlie claim group (WC2017/007) by l00 per cent. On 21 October 2019, the registered native title claimant for the Marlinyu Ghoorlie claim group (native title party) lodged an objection with the National Native Title Tribunal against the inclusion of the expedited procedure statement.

4. The native title party’s objection was made within the timeframe required under s 32(3) of the NTA and therefore under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in this matter.

Relevant facts

1. On 24 October 2019, directions were made requiring all parties to provide contentions and evidence for the conduct of the inquiry. The directions were sent to all parties that same day. In compliance with direction 1 the Government Party provided documentation on 25 November 2019.  Included in that documentation is the Application for Mining Tenement E77/2597 dated 11 May 2019.  The Application informs me that the applicant is Mining Equities Pty Ltd and a postal address is provided.  In the space provided for the signature of the applicant or agent is the name Peter Gianni.   Correspondence for the grantee party in this matter was sent to Mr Gianni at the postal address listed for Mining Equities Pty Ltd.

2. The native title party was directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 9 December 2019. The native title party did not provide any contentions or evidence by the due date, and has not made any request for an extension of time to do so.

3. On 10 December 2019, the Tribunal wrote to all parties advising that, due to the native title party’s non-compliance, the objection was at risk of dismissal under s148(b) of the NTA. Parties were invited to provide comments by no later than close of business on 17 December 2019. On 11 December 2019, the State wrote to the Tribunal requesting the dismissal of the objection. No response was received from the representative for the native title party or grantee party.

Consideration of the 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 application or to comply with a direction by the Tribunal.

2. While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious 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 the consideration of dismissal of an objection application for failure to comply with a direction are set out in the Tribunal’s decision in Teelow v Page (at [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 (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

5. In this case the native title party has not given any reason for its non-compliance with the directions of the Tribunal, nor sought any extension of time. Further, the native title party has not responded to the Tribunal’s correspondence despite being given an opportunity to do so.

6. In the circumstances, the native title party has had sufficient opportunity to comply with directions set by the Tribunal or make a request for an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the 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 exploration licence E77/2597 is dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
18 December 2019