Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Michael Clark & Anor

[2024] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Michael Clark & Anor [2024] NNTTA 29 (7 May 2024)

Application No: WO2023/0854

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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Michael Clark

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	7 May 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:

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)

Representative of the native title party:

Rachel McGarry, Houston Legal & Consultants

Representative of the grantee party: Nick Anticich

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

REASONS FOR DETERMINATION

Background

1. On 20 September 2023, 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 16/3430 to Michael Clark. The s 29 notice included a statement that the State considers the grant of the proposed licence 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 is located approximately 25 km south-westerly of Ora Banda and sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).

4. On 30 October 2023, 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 purposes of the inquiry in this matter.

2. On 24 January 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Per those directions, Marlinyu Ghoorlie was directed to provide its contentions and evidence by 10 April 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.

3. On 17 April 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 24 April 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 application in relation to P 16/3430 is dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
7 May 2024