Henry Richard Dimer and Others on behalf of the Marlinyu Ghoorlie Claim Group v Kenneth Ricciardello and Another

[2024] NNTTA 84

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer and Others on behalf of the Marlinyu Ghoorlie Claim Group v Kenneth Ricciardello and Another [2024] NNTTA 84 (12 November 2024)

Application No: WO2024/0338

IN THE MATTER of an inquiry into an expedited procedure objection application

Henry Richard Dimer and Others on behalf of the Marlinyu Ghoorlie Claim Group (WC2017/007)

(native title party/Marlinyu Ghoorlie)

- and -

Kenneth Ricciardello

(grantee party)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	12 November 2024

Catchwords:	Native title – future act – 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, 30, 148(b)
Representative of the native title party:	Parsa Ardestani, Houston Legal & Consultants

Representative of the grantee party: Peter Gianni, Mining Equities Pty Ltd

Representative of the Government party: Andrea Pearce, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

1. This is a decision made under s 148(b) of the Native Title Act1993 (Cth), which empowers the Tribunal to dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails, within a reasonable time, to proceed with the application or comply with a direction of the Tribunal.

2. The State gave public notification of the proposed grant of a prospecting licence to the grantee,[1] and included a statement that it considers the grant attracts the expedited procedure.[2] The effect of giving such a notice is that unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith.

   [1] P 26/4727.

   [2] See s 29 of the NTA.

3. Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licence and a native title party for the purposes of the Native Title Act.[3] Marlinyu Ghoorlie lodged an objection to the application of the expedited procedure statement.

   [3] See s 30 of the NTA.

Native title party’s failure to proceed

1. Following lodgement and acceptance of the objection by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. In accordance with the directions made in September 2024, Marlinyu Ghoorlie’s contentions and evidence were due on or before 22 October 2024. No contentions or evidence were received by this date, nor was any request for an extension of time made for Marlinyu Ghoorlie.

2. On 29 October 2024, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply, and that the objection was now at risk of dismissal. Marlinyu Ghoorlie was given until 5 November 2024 to provide a response or request further time. The other parties were also invited to provide any comments. To date, no response has been received from any party.  

Consideration of dismissal

1. Marlinyu Ghoorlie have failed to progress the objection application within a reasonable period despite being afforded sufficient opportunity. They have failed to comply with directions set by the Tribunal, have not provided any reason for their non-compliance, and no request for an extension of time has been made.

1. Unfortunately, Marlinyu Ghoorlie have failed to progress over 120 objection applications in the last 12 months leading to dismissal in similar circumstances.[4]

   [4] Tribunal records show 124 objection applications filed by Marlinyu Ghoorlie have been dismissed in the period of 12 November 2023 to 12 November 2024.

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

Decision

1. The expedited procedure objection application in relation to P 26/4727 is dismissed pursuant to s 148(b) of the Native Title Act.

Lisa Eaton
Member

12 November 2024