Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Fortuna Resources Pty Ltd & Anor
[2024] NNTTA 3
•25 January 2024
NATIONAL NATIVE TITLE TRIBUNAL
Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Fortuna Resources Pty Ltd & Anor [2024] NNTTA 3 (25 January 2024)
Application No(s): | WO2023/0455, WO2023/0553 |
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/Marlinyu Ghoorlie)
- and -
Fortuna Resources Pty Ltd
(grantee party/Fortuna)
- and -
State of Western Australia
(State)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Member Lisa Eaton |
Place: | Perth |
Date: | 25 January 2024 |
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 party: | Simon Atherton, Boyles Consulting |
| Representatives of the State: | Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
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.
The State gave public notification of the proposed grant of two prospecting licenses[1] to Fortuna and included a statement that it considers the grants attracts 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.
[1] P16/3411 and P26/4693.
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 Act.[2]
[2] See s 30 of the Act.
In May and June 2023, Marlinyu Ghoorlie lodged applications with the Tribunal objecting to the State’s inclusion of the expedited procedure statement to the proposed grant of the licences. As a result, unless the applications are withdrawn or dismissed, the Tribunal is required to determine whether the grants are acts attracting the expedited procedure.[3]
Native title party’s failure to proceed with the application or comply with directions of the Tribunal
[3] See s 32(4) of the Act.
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, with both licences to be dealt with together. By August 2023, the Tribunal and all parties were informed that Fortuna wished to proceed to inquiry. The directions in place in this inquiry were amended on several occasions at the request of, and in consultation with, the parties.
These applications were first at risk of dismissal in November 2023, when Marlinyu Ghoorlie failed to comply and provide its contentions and evidence by 6 November 2023 as then directed. As a result, on 11 November 2023 the parties were notified by the Tribunal that the applications were at risk of dismissal. On 17 November 2023, Marlinyu Ghoorlie made a late extension request on the following grounds:
As you are aware, the ongoing changes in the cultural heritage legislation (finally proclaimed this week) caused uncertainty around how matters will progress through the inquiry process. Furthermore, the NTP has been actively engaging in their determination hearings along with the NTP attending to a significant number of matters rushing through following the decision earlier this year re: Maduwongga.
I met with the NTP last week, 8 to 10 November 2023 to receive instructions and gather evidence for various outstanding matters including this matter.
We will now prepare contentions and affidavits accordingly and provide to the NTP for review and finalisation at our next meeting scheduled for the week commencing 4 December 2023.
I therefore request the Tribunal consider an extension to the NTP compliance date to 15 December 2023, this will allow us time to finalise the evidence and affidavits and, if there are any issues with the drafts at the next meeting, attend to correcting and finalising.
The above extension request was granted, and in accordance with the amended directions made on 20 November 2023, Marlinyu Ghoorlie’s contentions and evidence were due on or before 15 December 2023.
On 15 December 2023, the Tribunal emailed the parties noting Marlinyu Ghoorlie’s contentions and evidence were due that day. No response was received, nor was any request for extension made for the native title party.
On 18 December 2023, the Tribunal again emailed all parties, this time noting Marlinyu Ghoorlie had failed to comply, and that the objection was 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 22 December 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 the 22 December 2023, this matter will be referred back to Member Eaton for consideration of dismissal.
On 22 December 2023, Marlinyu Ghoorlie requested a further period of approximately seven weeks to provide its contentions on the following grounds:
We note that the native title party was due to comply on 15 December 2023, however due to various factors including:
·the large volume of NNTT matters the native title party is currently involved in;
·the backlog due to the many issues with the Aboriginal Cultural Heritage Act/Aboriginal Heritage Act through 2023 which only resolved on 15 November 2023;
·the finite resources available to the native title party including a severe lack of funding and financial resources; and
·the native title party being actively engaged in the native title determination process throughout 2023, including the gathering and giving of evidence to the Federal Court throughout October and December 2023,
the native title party has not been able to finalise their instructions to us and settle contentions and evidence in this matter prior to the Christmas/New Year Period.
We await confirmation from the native title party on when our first meeting for 2024 will be held, at which point we will be able to confirm our draft documents and obtain our final instructions and swear/affirm documents.
We have taken steps to confer with the other parties to in relation to an extension to the NTP compliance to 9 February 2024 and will provide an update to the NNTT on conferral in due course.
As this request was made just prior to the holiday closure period, I allowed the other parties until 10 January 2024 to provide comments. The State did not oppose the extension request and the grantee provided no comment.
After considering the request, the age and procedural history of the matter, and the responses from the parties, I gave Marlinyu Ghoorlie a short further extension until 4:00 PM (AWST) on 18 January 2024 to provide its contentions and evidence, noting that if they failed to do so the matter would proceed to dismissal. Marlinyu Ghoorlie did not provide its contentions and evidence by this date, or at all.
On 23 January 2024, 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 further extension request had been received.
Power of Tribunal under s 148
The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[4] 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.
[4] See s 109(1) of the Act.
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.
[5] Teelow v Page at [13].
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:[6]
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.
[6] David Stock v Giralia at 6-7.
In this matter Marlinyu Ghoorlie have failed to progress the objection applications within a reasonable period, despite being afforded sufficient opportunity. None of the factors raised by Marlinyu Ghoorlie in support of their late extension request were new or unexpected, and many had already been relied upon by them when they requested an extension of approximately six weeks in November 2023, which was granted.
Having regard to all the facts and circumstances, I am satisfied that the objection applications should be dismissed.
Determination
The expedited procedure objection applications in relation to P16/3411 and P26/4693 are dismissed pursuant to s 148(b) of the Act.
Ms Lisa Eaton
Member
25 January 2024
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