Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Lyndon Scott Mahoney and Another

[2024] NNTTA 79

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Lyndon Scott Mahoney and Another [2024] NNTTA 79 (24 October 2024)

Application No: WO2024/0561 - 0562

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

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

(native title party)

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Lyndon Scott Mahoney

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	24 October 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:	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 of the grantee party: Lyndon Scott Mahoney

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

REASONS FOR DISMISSAL    

1. On 10 April 2024, 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 15/6855 and P 26/4732 to Lyndon Scott Mahoney (grantee party). The s 29 notices included a statement that the State considers the grant 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 licence P 15/6855 is located approximately 7.6 km north easterly of Coolgardie and covers an area of approximately 0.23 sq km. The proposed licence P 24/5716 is located approximately 10.3 km north easterly of Kalgoorlie and covers an area of approximately 0.17 sq km. Both proposed licences sit wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).

4. On 3 July 2024, the legal representative for Marlinyu Ghoorlie lodged objection applications 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

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

2. On 7 August 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 3 October 2024. On the date Marlinyu Ghoorlie’s compliance was due, the Tribunal did not receive any contentions or evidence from them.

3. On 9 October 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 16 October 2024 to provide a response. No response was received from any party.

4. On 18 October 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

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 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 this matter, I am satisfied that the objection applications should be dismissed.

Determination

1. The expedited procedure objection applications in relation to prospecting licences P 15/6855 and P 26/4732 are dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
24 October 2024