Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Pelm Resources Pty Ltd & Anor

[2024] NNTTA 10

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Pelm Resources Pty Ltd & Anor [2024] NNTTA 10 (1 March 2024)

Application No: WO2023/0488, 0542 - 0546

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)

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Pelm Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	1 March 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)

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Fortuna Resources Pty Ltd and Anor [2024] NNTTA 4 (Marlinyu Ghoorlie v Fortuna Resources)

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Gemlab Australia Pty Ltd & Anor [2024] NNTTA 1 (Marlinyu Ghoorlie v Gemlab)

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: Eamon Cornelius, Western Tenement Services

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

REASONS FOR DETERMINATION

Background

1. In May 2023, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (Native Title Act) of its intention to grant prospecting licences P16/3413 and P15/6790 – 6794 (proposed licences) to Pelm Resources Pty Ltd (Pelm Resources). The s 29 notices 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).

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 total area of the proposed licences is approximately 7.96 km². P16/3413 is located approximately 34 km west of Ora Banda while P15/6790 – 6794 are located approximately 18 km southwest of Kalgoorlie. The latter licences are approximately 87 km southeast from the former. The proposed licences sit wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017) (Marlinyu Ghoorlie).

4. In June 2023, the legal representative for Marlinyu Ghoorlie lodged objections with the National Native Title Tribunal (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 purposes of the inquiry in these matters.

2. On 5 July 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. The directions were amended two further times on 2 August 2023 and 20 September 2023. Per the latter directions, Marlinyu Ghoorlie were directed to provide its contentions and evidence by 4 December 2023. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.

3. On 5 December 2023, 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 12 December 2023 to provide a response. No response was received from Marlinyu Ghoorlie at this time. On 12 December 2023, the representative for Pelm Resources advised that as Marlinyu Ghoorlie’s compliance date had passed, they were instructed to request that the objections proceed to dismissal.

4. The Tribunal sent a further email to Marlinyu Ghoorlie on 14 December 2023, noting the lack of response to the notice of non-compliance. Marlinyu Ghoorlie was given until close of business, 22 December 2023 and if no response was received, the objections would be referred to the Member for dismissal.

5. Marlinyu Ghoorlie responded to the risk of dismissal email on 22 December 2023, the content of which was the same as emails provided to Member Eaton and are reproduced in her recent dismissals Marlinyu Ghoorlie v Gemlab ([9]) and Marlinyu Ghoorlie v Fortuna Resources ([10]). I will not repeat the content of those emails here.

6. As a result, Marlinyu Ghoorlie requested an extension to their compliance to 9 February 2024. They advised they were liaising with the other parties to get support for the extension request and would notify the Tribunal of the outcome of this. No further response or comments have been received from any party.

7. Per their request, The Tribunal provided Marlinyu Ghoorlie until 9 February 2024 to submit their contentions and evidence, however, no submissions were made by this date or since.

8. On 12 February 2024, the Tribunal wrote to all parties and confirmed that Marlinyu Ghoorlie had again failed to comply and the matters would proceed to dismissal.

Consideration of Dismissal

1. Per 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 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 this matter.

3. 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 ultimate non-compliance and no request for further extension has been made. 

4. Having regard to all of the facts and circumstances of these matters, I am satisfied that the objection applications should be dismissed.

Determination

1. The expedited procedure objection applications in relation to P16/3413 and P15/6790 – 6794 are dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
1 March 2024