Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Patrick Natale Constanzo & Anor
[2024] NNTTA 45
•17 June 2024
NATIONAL NATIVE TITLE TRIBUNAL
Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Patrick Natale Constanzo & Anor [2024] NNTTA 45 (17 June 2024)
Application No: | WO2023/0970, WO2023/0971, WO2023/0972 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
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)
- and -
Patrick Natale Costanzo
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 17 June 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: | 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: | Patrick Natale Costanzo |
| Representatives of the Government party: | Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 15 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 24/5689, P 24/5698 and P 24/5696 to Patrick Natale Constanzo. The s 29 notice included a statement that the State considers the grant of the proposed licences an act 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 licences are located north of Coolgardie and each of the proposed licences sits wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017).
On 29 November 2023, 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
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 20 March 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry, with Marlinyu Ghoorlie directed to provide their contentions and evidence by 8 May 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.
On 14 May 2024, the Tribunal emailed all parties, noting that Marlinyu Ghoorlie had failed to comply and that the objections were now at risk of dismissal. Parties were given until close of business 21 May 2024 to provide a response. No response was received from Marlinyu Ghoorlie by this time.
Consideration of Dismissal
Pursuant to 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 has 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 these matters, I am satisfied that the objection applications should be dismissed.
Determination
The expedited procedure objection applications in relation to P 24/5689, P 24/5695, and P 24/5696 are dismissed pursuant to s 148(b) of the Native Title Act.
Mr Glen Kelly
Member
17 June 2024
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