Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Hesperian Resources Pty Ltd and Another

[2024] NNTTA 72

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Hesperian Resources Pty Ltd and Another [2024] NNTTA 72 (20 September 2024)

Application No: WO2024/0417

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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Hesperian 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:	20 September 2024

Catchwords:	Native title – future act – proposed grant of prospecting licence – 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:	Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)
Representative of the native title party:	Parsa Ardestani, Houston Legal

Representative(s) of the grantee party: Steven Kean, Hesperian Resources Pty Ltd

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

REASONS FOR DISMISSAL    

1. On 28 February 2024, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P 24/5716 to Hesperian Resources Pty Ltd. The s 29 notices included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the Native Title Act (expedited procedure statement).

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

3. The proposed licence P 24/5716 is located approximately 16.8 km south easterly of Broad Arrow and covers an area of approximately 2 sq km. The proposed licence sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).

4. On 17 May 2024, the legal representative for Marlinyu Ghoorlie lodged an objection application with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the licence. The objection application was 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 licence 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 purpose of the inquiry into this matter.

2. On 10 July 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. As part of these directions, Marlinyu Ghoorlie were directed to provide contentions and evidence into the inquiry by 28 August 2024. On the date Marlinyu Ghoorlie’s compliance was due, no contentions or evidence were received by the Tribunal.

3. On 4 September 2024, the Tribunal emailed all parties, noting that Marlinyu Ghoorlie had failed to comply, and that the objection application was now at risk of dismissal under s 148(b) of the Native Title Act. Parties were given until close of business 11 September 2024 to provide a response. No response from Marlinyu Ghoorlie has been received to date.

Consideration of Dismissal

1. Under 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 in considering dismissal of an objection application for failure to comply with directions are set out in the Tribunal's decision in Teelow v Page at [13]. I have applied those principles in my consideration of this matter.

3. On this occasion, it is my view that Marlinyu Ghoorlie has been afforded sufficient opportunity to progress the objection application 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 this matter, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection applications in relation to prospecting licence P 24/5716 are dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
20 September 2024