Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Goldzone Investments Pty Ltd and Another

[2023] NNTTA 36

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Goldzone Investments Pty Ltd and Another [2023] NNTTA 36 (11 October 2023)

Application No: WO2023/0380

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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)

- and -

Goldzone Investments Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	11 October 2023

Catchwords:	Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – expedited procedure objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 32, 148
Cases:	David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’)
Representative of the native title party:	Rachel McGarry, Houston Legal

Representative of the grantee party: Ley Kingdom, Witan Resources Pty Ltd

Representative of the Government party: Paola O’Neill, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. Goldzone Investments Pty Ltd has applied for the grant of a prospecting licence (P 77/4611) near Southern Cross in Western Australia. The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth).

2. The licence is located wholly within the area of the Marlinyu Ghoorlie native title determination application (WAD647/2017) (Marlinyu Ghoorlie Claim) and the registered native title claimant for the Marlinyu Ghoorlie Claim (Marlinyu Ghoorlie) objects to the application of the expedited procedure to the grant of the licence. The Tribunal is therefore required to determine whether or not the expedited procedure applies: s 32(4) Native Title Act.

3. Marlinyu Ghoorlie has not complied with the Tribunal’s directions, despite being afforded a reasonable time in which to do so. For the reasons that follow, I have dismissed Marlinyu Ghoorlie’s objection application.

What steps have Marlinyu Ghoorlie taken to comply with the Tribunal’s directions?

1. On 25 May 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry into whether the expedited procedure applies to the grant of the licence. In accordance with those directions, Marlinyu Ghoorlie’s material was due to be provided on or before 29 June 2023.

2. At the preliminary conference on 1 June 2023, Goldzone advised that it was looking to reach agreement with Marlinyu Ghoorlie and indicated that the licence could be added to an existing agreement between the parties. Marlinyu Ghoorlie agreed to consider that matter further.  

3. By the time of the next conference on 22 June 2023, Marlinyu Ghoorlie’s position on use of the existing agreement remained unresolved. However, Marlinyu Ghoorlie’s representative expected to obtain instructions the following day and agreed to confer with the other parties regarding an extension of time to the directions timetable, if required. No further conference was scheduled at that time.

4. The State provided its initial material on 2 June 2023, but Marlinyu Ghoorlie failed to comply by its due date of 29 June 2023, or seek an extension of time.

5. After unsuccessful attempts to contact Marlinyu Ghoorlie on 6 July 2023 and 10 July 2023, the Tribunal wrote to all parties on 11 July 2023 to advise that the objection application was at risk of dismissal. Parties were invited to provide any comments by 18 July 2023. No comments were received from any party.

6. Because there was a possibility this matter could be dealt with by way of an existing agreement, I held a further conference on 3 August 2023 to hear from the parties before considering the dismissal of the objection application.

7. At that conference, Marlinyu Ghoorlie’s representative advised that she was still waiting to clarify instructions from Marlinyu Ghoorlie, which she expected to do the following week. The circumstances surrounding changes to the heritage legalisation in Western Australia were noted to have caused a delay and Marlinyu Ghoorlie sought a four week extension to the directions timetable. Goldzone noted it had not heard from Marlinyu Ghoorlie since the last conference but supported the extension. I allowed the four week extension and Marlinyu Ghoorlie’s material was then due to be provided on or before 31 August 2023.

8. Once again, Marlinyu Ghoorlie did not comply by its new due date of 31 August 2023, nor did it seek an extension of time.

9. On 11 September 2023, the Tribunal again wrote to all parties to advise that the objection application was at risk of dismissal and sought comments from the parties by 18 September 2023. On 18 September 2023, Goldzone advised that its position had not changed and that it was still waiting for a response from Marlinyu Ghoorlie regarding adding the licence to the existing agreement. To date, no comments have been received from Marlinyu Ghoorlie or the State.

Should the objection application be dismissed?

1. The Tribunal has a broad discretion to 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 application or to comply with a direction of the Tribunal: s 148(b) Native Title Act. The Tribunal has observed on many occasions that it is for the native title party to take steps to progress an objection application within a reasonable time if it wishes to pursue it: Stock v Giralia (at page 7).

2. This matter has twice been at risk of dismissal and Marlinyu Ghoorlie has been afforded additional time. Since being given notice on 11 September 2023 that its application was at risk of dismissal, Marlinyu Ghoorlie has not communicated further with the Tribunal, nor sought any additional time for compliance.

3. Having regard to all the facts and circumstances, I am satisfied that Marlinyu Ghoorlie’s objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to prospecting licence P 77/4611 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
11 October 2023