Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v Southern Lithium Pty Ltd

[2019] NNTTA 108

NATIONAL NATIVE TITLE TRIBUNAL

Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v Southern Lithium Pty Ltd & Anor [2019] NNTTA 108 (27 November 2019)

Application Nos: WO2019/0922-0923

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 applications

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

(native title party)

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Southern Lithium Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	27 November 2019

Catchwords:	Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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: Mr Peter Gianni

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 licences E77/2585 and E77/2586 (licences) to Southern Lithium Pty Ltd (grantee party). The notification day was 5 June 2019. The s 29 notice included a statement that the State considers the grant of the licences are acts attracting the expedited procedure under the NTA (expedited procedure Statement).

2. If the expedited procedure applies, then the State may grant the licences without compliance with the negotiation procedure under s 31 of the NTA.

3. The areas of the proposed licences overlap the area of the registered native title application made by the Marlinyu Ghoorlie claim group (WC2017/007) by l00 per cent. On 4 October 2019, the registered native title claimant for the Marlinyu Ghoorlie claim group (native title party) lodged objections with the National Native Title Tribunal against the inclusion of the expedited procedure statement.

4. The native title party’s objections were 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 licences are acts attracting the expedited procedure.

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

Relevant facts

1. On 11 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. On 16 October 2019 the directions were amended at the request of the State. The amended directions were sent to all parties that same day.  The native title party was directed to provide a statement of contentions, documentary evidence and witness statements for the objection applications, verified where possible by affidavit, on or before 15 November 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.

2. On 18 November 2019, the Tribunal wrote to all parties advising that, due to the native title party’s non-compliance, the objections were at risk of dismissal under s148(b) of the NTA. Parties were invited to provide comments by no later than close of business on 25 November 2019. No response was received from parties.

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 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 these matters.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection applications 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 these matters, I am satisfied that the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licences are acts attracting the expedited procedure.

Decision

1. The expedited procedure objection applications against exploration licences E77/2585 and E77/2586 are dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
27 November 2019