Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie Claim Group v Peter Andrew Wiltshire & Anor

[2024] NNTTA 52

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie Claim Group v Peter Andrew Wiltshire & Anor [2024] NNTTA 52 (25 July 2024)

Application No: WO2024/0208

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

Henry Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group (WC2017/007)

(native title party/Marlinyu Ghoorlie)

- and -

Peter Andrew Wiltshire

(grantee party)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	25 July 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, 32, 109(1), 148(b) (the NTA)

Cases:

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

Representative of the grantee party: Peter Andrew Wiltshire

Representatives 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 NTA, 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 the 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 26/4718.

   [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 NTA.[3]  In this capacity, the legal representative for Marlinyu Ghoorlie lodged an objection application to the State’s inclusion of the expedited procedure statement.  As a result, unless the application is withdrawn or dismissed, the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.[4]

   [3] See s 30 of the NTA.

   [4] See s 32(4) of the NTA.

Native title party’s failure to proceed

1. Following acceptance of the objection application by the Tribunal, I made directions in May 2024 requiring all parties to provide contentions and evidence for the conduct of the inquiry.  In accordance with those directions, Marlinyu Ghoorlie’s contentions and evidence were due on or before 28 June 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 9 July 2024, 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 NTA. Marlinyu Ghoorlie was given until 16 July 2024 to provide a response or request further time. The other parties were also invited to provide any comments.

3. The Tribunal received no response from any party by 16 July 2024, or at all.

Consideration of dismissal

1. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[5]  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, in this case Marlinyu Ghoorlie, to progress the application and to communicate with the Tribunal and all parties.[6]  The Tribunal must also ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[7] 

   [5] Teelow v Page at [13].

   [6] Stock v Giralia, 6-7.

   [7] See s 109(1) of the NTA.

2. 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. While the Tribunal has broad discretion to dismiss an objection application, it is not an action to be taken lightly.

3. In this matter, 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, they have not provided any reason for their non-compliance, and no request for an extension of time has been made. 

4. As I have noted in previous decisions, unfortunately Marlinyu Ghoorlie have failed to progress several objection applications recently.  It is incumbent on Marlinyu Ghoorlie to carefully consider its obligation to promptly progress any objection applications before the Tribunal in any future matters.

5. 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 26/4718 is dismissed pursuant to s 148(b) of the NTA.

Lisa Eaton
Member

25 July 2024