Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Graeme Campbell & Anor
[2024] NNTTA 56
•31 July 2024
NATIONAL NATIVE TITLE TRIBUNAL
Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Graeme Campbell & Anor [2024] NNTTA 56 (31 July 2024)
Application No: | WO2024/0097, WO2024/0098 |
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 -
Graeme Campbell (grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 31 July 2024 |
Catchwords: | Native title – future act – proposed grant of prospecting licences – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application 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: | Graeme Campbell |
| Representatives(s) of the Government party: | Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 29 November 2023, 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 26/4621 and P 26/4624 to Mr Graeme Campbell. The s 29 notice included a statement that the State considers the grant of the proposed licences as acts attracting the expedited procedure under the Native Title Act (expedited procedure statement).
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.
The proposed licence P 26/4621 is located approximately 4.8 km west of Kalgoorlie and covers an area of approximately 1.2 km². The proposed licence P 26/4624 is located approximately 4.1 km west of Kalgoorlie and covers an area of approximately 1.4 km². The proposed licences sit wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).
On 1 February 2024, 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 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 are acts attracting the expedited procedure.
Relevant Facts
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.
On 1 May 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. According to those directions, Marlinyu Ghoorlie were directed to provide their contentions and evidence by 3 July 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.
On 18 July 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 25 July 2024 to provide a response. No response was received from Marlinyu Ghoorlie at this time.
On 29 July 2024, the Tribunal wrote to all parties and confirmed that Marlinyu Ghoorlie had not provided a response and the matters would be considered for dismissal.
Consideration of Dismissal
Pursuant to 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.
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.
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.
Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.
Determination
The expedited procedure objection applications in relation to P 26/4621 and P 26/4624 are dismissed pursuant to s 148(b) of the Native Title Act.
Mr Glen Kelly
Member
31 July 2024
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