Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Complete Prospecting and Another

[2023] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Complete Prospecting and Another [2023] NNTTA 39 (24 November 2023)

Application No(s): WO2023/0345, WO2023/0346, WO2023/0391, WO2023/0392, WO2023/0393, WO2023/0394, WO2023/0395, WO2023/0396, WO2023/0457, WO2023/0493

IN THE MATTER of an inquiry into expedited procedure objection applications

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party/Marlinyu Ghoorlie)

- and -

Complete Prospecting Pty Ltd

(grantee)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	24 November 2023

Catchwords:

Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – s 148(b) – objection applications dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 109(1), 148(b) (the Act)

Cases:

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

Representatives of the State: Andrea Wyles and David Crabtree, Department of Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

1. This is a decision made under s 148(b) of the Act, 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 various prospecting licences to the grantee, and included a statement that it considers the grants attract the expedited procedure.  The effect of giving such a notice is that unless a native title party lodges an objection, the acts may be done without first requiring all the parties to negotiate in good faith.

3. Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licences and a native title party for the purposes of the Act.[1]

   [1] See s 30 of the Act.

4. Marlinyu Ghoorlie lodged objection applications to the States’ inclusion of the expedited procedure statement to the proposed grants.  As a result, the Tribunal is required to determine whether the grant of the proposed licences are acts attracting the expedited procedure.[2]  Details of the objection applications and corresponding licences the subject of this decision are set out at Schedule A.

   [2] See s 32(4) of the Act.

Power of tribunal where no jurisdiction, failure to proceed etc.

1. Following lodgement and acceptance of the objections 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, Marlinyu Ghoorlie’s contentions and evidence were due on 9 October 2023.

2. The Tribunal wrote to all parties on 9 October 2023 to note the pending compliance date, however no contentions were received by this date, nor was any request for extension made for the native title party.

3. On 16 October 2023, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply and that the objections were now at risk of dismissal under s 148(b) of the Act. The email outlined (emphasis in original):

   In the notification email, parties were advised:

   If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.

   Parties are now on notice this matter is at risk of dismissal. The native title party has until 23 October 2023 to provide reasons as to why compliance has not been met, and request any further time, for Member Eaton’s consideration and party input. Further time will not automatically be granted. If there is no response on or by 23 October 2023, the matter will be referred back to Member Eaton for consideration of dismissal.

4. The Tribunal received no response by 23 October 2023, or at all.  On 24 October 2023, the Tribunal emailed all parties to advise that the objection applications were now proceeding to dismissal. 

5. On 2 November 2023, Marlinyu Ghoorlie requested further time to provide its contentions.  On 3 November 2023, I considered this request at a case management conference and heard submissions from all parties.  The native title party was given until 20 November 2023 to provide its contentions and evidence and directions were amended accordingly.  On the same day parties were advised in an email from the Tribunal that ‘this would be a final extension and if no compliance is provided, this matter will proceed to prompt dismissal.’

6. A further email from the Tribunal was sent to all parties on 20 November 2023 noting the pending compliance.  No response was received.  On 21 November 2023, the Tribunal wrote to all parties and confirmed that the matter would be proceeding to dismissal as Marlinyu Ghoorlie had failed to lodge its evidence in compliance with the amended directions, and no response or extension request had been received.

7. The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[3] 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] See s 109(1) of the Act.

8. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[4] I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. 

   [4] Teelow v Page at [13]. 

9. Once an objection application is made it is incumbent on the objector to progress the application and to communicate with the Tribunal and all parties.  In David Stock v Giralia, the Tribunal outlined this principle:[5]

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

   [5] David Stock v Giralia, 6-7.

10. In this matter Marlinyu Ghoorlie have failed to progress the objection applications within a reasonable period of time, despite being afforded sufficient opportunity.  They have failed to comply with the amended 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.

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

Determination

1. The expedited procedure objection applications in relation to P15/6735, P24/5569, P15/6739, P24/5605, P24/5606, P24/5607, P24/5608, P24/5609, P25/2749 and P24/5633 are dismissed pursuant to s 148(b) of the Act.

Ms Lisa Eaton
Member

24 November 2023

SCHEDULE A

OBJECTION APPLICATION NO.	TENEMENT NO.	NOTIFICATION DATE	OBJECTION LODGED
WO2023/0345	P15/6735	25/01/2023	17/05/2023
WO2023/0346	P24/5569	25/01/2023	17/05/2023
WO2023/0391	P15/6739	8/02/2023	17/05/2023
WO2023/0392	P24/5605	8/02/2023	17/05/2023
WO2023/0393	P24/5606	8/02/2023	17/05/2023
WO2023/0394	P24/5607	8/02/2023	17/05/2023
WO2023/0395	P24/5608	8/02/2023	17/05/2023
WO2023/0396	P24/5609	8/02/2023	17/05/2023
WO2023/0457	P25/2749	19/04/2023	17/05/2023
WO2023/0493	P24/5633	03/05/2023	13/06/2023