Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v Pelm Resources Pty Ltd & Another

[2020] NNTTA 34

NATIONAL NATIVE TITLE TRIBUNAL

Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v Pelm Resources Pty Ltd & Another [2020] NNTTA 34 (23 March 2020)

Application No: WO2019/0711; WO2019/0712; WO2019/0713; WO2019/0714; WO2019/0715; WO2019/0716; WO2019/1195; WO2019/1196; WO2019/1197; WO2019/1198; WO2019/1199; WO2019/1200

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

- and -

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)

- and -

Pelm Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	The Hon John Dowsett AM, QC President
Place:	Brisbane
Date:	23 March 2020

Catchwords:	Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) s 29, 31, 32, 75-77 148(b), 233, 237

Representative of the native title party: Mr Simon Blackshield, Blackshield Lawyers

Representative of the grantee party: Mr Eamon Cornelius, Western Tenement Services

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

BACKGROUND

1. On 22 December 2017, Brian Champion Senior, Henry Dimer, Maxine Dimer, Raelene Peel, James Champion, Darren Indich and Simon Champion (collectively the “applicant”) applied for a native title determination pursuant to the Native Title Act 1993 (Cth) (the “Act”). On 28 March 2019, the claim was entered in the Register of Native Title Claims.

2. On the dates specified on the attached schedule, the State of Western Australia (the “State”) gave notice (the “notice) to the applicant, under s 29 of the Act of its intention to grant certain prospecting licences specified on the attached schedule (the “proposed grants”) to Pelm Resources Pty Ltd (the “proposed grantee”). In the notice, the State asserted that the proposed grants attracted the expedited procedure. See s 29(7). Section 31 confers upon native title parties the right to make submissions concerning such a proposed grant and to negotiate in good faith with the State and the proposed grantee. However, where the State asserts that the expedited procedure applies, native title parties have no such rights, unless they successfully object pursuant to s 32 of the Act. The applicant’s claim area overlaps the whole of the area of the proposed grants. On the dates specified in the attached schedule, the applicant lodged objections pursuant to s 32(3) of the Act.

3. The proposed grants would be future acts as defined in s 233 of the Act. Pursuant to s 237, a future act attracts the expedited procedure if it:

   (a) … is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b) … is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c) … is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

4. On the dates specified in the attached schedule, directions were made requiring all parties to provide contentions and evidence for the conduct of the inquiry. In each case the Tribunal directed that, on or before 28 February 2020, the applicant provide a statement of contentions and supporting documents. Parties were asked to note:

   •    if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application; and

   …

5. The applicant has not complied with those directions.

6. Section 148 provides:

   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a) the Tribunal is satisfied that it is not entitled to deal with the application; or

   (b) the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

7. Section 32 refers to an “objection” rather than an “application”. However ss 75‑77 regulate the making of such an objection, referring to it as an “application”. It follows that s 148(b) applies for present purposes.

8. On 3 March 2020, the Tribunal notified the proposed grantee, the State and the applicant as follows:

   The native title party has failed to provide contentions and evidence by their due date of 28 February 2020, and no request to extend this date has been received. This objection is now at risk of dismissal under s148 (b) of the Native Title Act 1993 (Cth).

   Could parties please provide any comments by no later than close of business Tuesday, 10 March 2020. Your comments will then be put to the Member for consideration.

9. On 3 March 2020, the State wrote to the Tribunal, formally requesting dismissal of the objections. On the same day, the proposed grantee wrote to the Tribunal, supporting the State’s request. On 11 March 2020, the representative of the applicant wrote to the Tribunal advising that the applicant does not oppose the dismissal of the objections.

10. Whilst the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for a native title party.  It is not a step which should be taken lightly. Having regard to all of the facts and circumstances of this matter I am satisfied that the applications should be dismissed.  Accordingly, it is not necessary that I determine whether the proposed grants would attract the expedited procedure. 

Decision

1. The objection applications specified in the attached schedule are dismissed pursuant to s 148(b) of the Act.

The Hon John Dowsett AM, QC
President
23 March 2020

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No.	Date of Govt. Party Notification (s29 Notice)	Objection Application No.	Date Objection Application Lodged	Date Directions set
P16/3180	24/04/2019	WO2019/0711	22/08/2019	6/02/2020
P16/3185	24/04/2019	WO2019/0712	22/08/2019	6/02/2020
P16/3186	24/04/2019	WO2019/0713	22/08/2019	6/02/2020
P16/3187	24/04/2019	WO2019/0714	22/08/2019	6/02/2020
P16/3188	24/04/2019	WO2019/0715	22/08/2019	6/02/2020
P16/3189	24/04/2019	WO2019/0716	22/08/2019	6/02/2020
P16/3191	28/08/2019	WO2019/1195	27/12/2019	10/02/2020
P16/3192	28/08/2019 28/08/2019	WO2019/1196	27/12/2019	10/02/2020
P16/3194	28/08/2019 28/08/2019	WO2019/1197	27/12/2019	10/02/2020
P16/3195	28/08/2019 28/08/2019	WO2019/1198	27/12/2019	10/02/2020
P16/3196	28/08/2019 28/08/2019	WO2019/1199	27/12/2019	10/02/2020
P16/3197	28/08/2019 28/08/2019	WO2019/1200	27/12/2019	10/02/2020