Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Fortuna Resources Pty Ltd & Anor

[2024] NNTTA 27

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Fortuna Resources Pty Ltd & Anor [2024] NNTTA 27 (24 April 2024)

Application No: WO2023/0705, WO2023/0848, WO2023/0899

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 application

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

(native title party)

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Fortuna Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	24 April 2024

Catchwords:

​Native title – future act – 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, 32, 148(b)

Cases:

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

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives(s) of the native title party:

Rachel McGarry, Houston Legal & Consultants

Representative(s) of the grantee party: Simon Atherton, Boyes Consulting

Representatives(s) of the Government party: Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

1. On the dates specified on the attached schedule, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P 16/3428, P 15/6822 and P 15/6824 to Fortuna Resources Pty Ltd. The s 29 notices included a statement that the State considered the grants of the proposed licences are acts attracting the expedited procedure under the Native Title Act (expedited procedure statement).

2. If the expedited procedure applies, the State may grant the proposed licences without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.

3. The proposed licences are located north of Coolgardie, and each of the proposed licences sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).

4. On the dates specified on the attached schedule, the legal representative for Marlinyu Ghoorlie lodged objections with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the proposed licences. The objection applications were lodged within the timeframe outlined in s 32(3) of the Native Title Act and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licences is an act attracting the expedited procedure.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in these matters.

2. On 13 December 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Per those directions, Marlinyu Ghoorlie were directed to provide their contentions and evidence by 28 March 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.

3. On 8 April 2024, the Tribunal emailed all parties, noting that Marlinyu Ghoorlie had failed to comply and that the objections were now at risk of dismissal per s 148(b) of the Native Title Act. Parties were given until close of business 15 April 2024 to provide a response. No response was received from Marlinyu Ghoorlie by this time.

4. On 17 April 2024, the Tribunal wrote to all parties and confirmed that Marlinyu Ghoorlie had not provided a response and the matters would proceed to dismissal.

Consideration of Dismissal

1. Per s 148(b) of the Native Title Act, 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 objection application or to comply with a direction of the Tribunal. While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.

2. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal's decision in Teelow v Page ([13]). I have applied those principles in my consideration of these matters.

3. On this occasion, it is my view that Marlinyu Ghoorlie has been afforded sufficient opportunity to progress these objection applications but have failed to do so within a reasonable time. Marlinyu Ghoorlie have failed to comply with directions set by the Tribunal, have not provided reasoning for their non-compliance and no request for an extension has been made. 

4. Having regard to all of the facts and circumstances of these matters, I am satisfied that the objection applications should be dismissed.

Determination

1. The expedited procedure objection applications in relation to P 16/3428, P 15/6822 and P 15/6824 are dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
24 April 2024

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No.	Date of Govt. Party Notification (s29 Notice)	Objection Application No.	Date Objection Application Lodged
P 16/3428	09/08/2023	WO2023/0705	15/08/2023
P 15/6822	20/09/2023	WO2023/0848	30/10/2023
P 15/6824	18/10/2023	WO2023/0899	29/11/2023