Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Tonino Pasquale Joseph Zocaro; Michael Adam Scaglione; Zhiqiang Xiao and Another

[2024] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Tonino Pasquale Joseph Zocaro; Michael Adam Scaglione; Zhiqiang Xiao and Another [2024] NNTTA 43 (12 June 2024)

Application No: WO2023/0701; WO2023/0935; WO2024/0108

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

- and -

IN THE MATTER of inquiries into expedited procedure objection applications

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

(native title party)

- and -

Tonino Pasquale Joseph Zocaro; Michael Adam Scaglione; Zhiqiang Xiao

(grantee parties)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	12 June 2024

Catchwords:	Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – expedited procedure objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss 32, 148
Representative of the native title party:	Rachel McGarry, Houston Legal

Representatives of the grantee parties: Tonino Zocaro (for WO2023/0701);
Michael Scaglione & Jacob Lynch-Harlow (for WO2023/0935); and
Zhiqiang Xiao (for WO2024/0108)

Representative of the Government party: Paola O’Neill, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. This is a decision to dismiss a number of expedited procedure objection applications made by the registered native title claimant for native title determination application WAD647/2017 (Marlinyu Ghoorlie). I am dealing with these matters together for convenience because the facts are similar.

2. Each of the grantee parties listed in the Schedule has applied for the grant of the corresponding prospecting licence, located in the area of Marlinyu Ghoorlie’s native title determination application. Marlinyu Ghoorlie objects to an assertion by the State of Western Australia that the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth).

3. The Tribunal’s role is to determine whether or not the expedited procedure applies: s 32(4) Native Title Act. However, Marlinyu Ghoorlie has failed to comply with the Tribunal’s directions and, for the reasons that follow, I have dismissed each objection application.

Why should the objection applications be dismissed?

1. At conferences held on 21 March 2024, I made directions for the conduct of the Tribunal’s inquiry in each matter, with the timetable being agreed by the parties. In accordance with those directions Marlinyu Ghoorlie’s contentions and evidence were due to be provided by the dates specified in the Schedule.

2. Marlinyu Ghoorlie did not comply by the dates specified, nor did it seek any extension of time. The Tribunal then wrote to the parties in each matter advising the application was at risk of dismissal, inviting Marlinyu Ghoorlie to give reasons for its failure to comply and seek any extension of time within a week, and also inviting comments from the other parties. No response was received from any party.

3. 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 application or to comply with a direction of the Tribunal: s 148(b) Native Title Act.

4. In each of these matters, Marlinyu Ghoorlie has been on notice of its due date since March. However, there is nothing to indicate that Marlinyu Ghoorlie has taken any steps to comply, nor has it sought an extension of time or communicated further with the Tribunal. I note that this is consistent with an apparent trend for Marlinyu Ghoorlie matters, with the Tribunal’s website indicating that approximately 80 objection applications made by Marlinyu Ghoorlie have been dismissed since August last year.

5. In the circumstances outlined above, I am satisfied that each of Marlinyu Ghoorlie’s objection applications should be dismissed because it has failed to comply with the Tribunal’s directions. Accordingly, it is not necessary for me to determine whether the grant of any of the licences is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection applications in relation to prospecting licences P 15/6809, P 24/5690 and P 15/6850 are dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
12 June 2024

SCHEDULE

Objection Application No.	Licence No.	Grantee Party	Marlinyu Ghoorlie’s compliance date
WO2023/0701	P 15/6809	Tonino Pasquale Joseph Zocaro	02/05/2024
WO2023/0935	P 24/5690	Michael Adam Scaglione	02/05/2024
WO2024/0108	P 15/6850	Zhiqiang Xiao	07/05/2024