Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Wepner Exploration Pty Ltd and Another

[2023] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Wepner Exploration Pty Ltd and Another [2023] NNTTA 32 (28 September 2023)

Application No: WO2023/0440

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 & Others on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party)

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Wepner Exploration Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	28 September 2023

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – amendment to claim application – Tribunal has no jurisdiction – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 32, 64(4), 148(a), 190A(6 - 6A), 190B, 190C
Representatives(s) of the native title party:	Rachel McGarry, Houston Legal

Representative(s) of the grantee party: Hayden Williams, Austwide Mining Title Management Pty Ltd

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

REASONS FOR DETERMINATION

1. On 22 March 2023, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E70/5788 (proposed licence) to Wepner Exploration Pty Ltd (grantee). The s 29 notice included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the NTA (expedited procedure statement).

2. On 21 May 2023, Marlinyu Ghoorlie (WC2017/007, WAD647/2017) lodged an expedited procedure objection application with the National Native Title Tribunal (Tribunal).

3. At the time the s 29 notice was given, more than half of the proposed licence overlapped the Marlinyu Ghoorlie claim area. Marlinyu Ghoorlie had status to make the objection application because they were a registered native title claimant over the proposed licence area and therefore a native title party (see ss 29(2)(b)(i); 32(3) NTA).

4. On 22 June 2023, Marlinyu Ghoorlie filed an amended application with the Federal Court to reduce the external boundaries of its claim area. A copy of the amended application was provided to the Registrar of the Tribunal (Registrar) that same day (s 64(4) NTA).

5. Section 190A(6) of the NTA requires that the Registrar must accept the claim for registration if the claim is an amended application received per s 64(4) and the claim satisfies all of the conditions set out in ss 190B and 190C (NTA) This consideration is known as the ‘registration test’.

6. However, pursuant to s 190A(6A) of the NTA, the registration test will not be applied to the amended application if the Registrar has previously accepted an earlier application for registration and the only effect of the amendment is one or more of the circumstances set out in s 190A(6A)(d) (NTA). Subsection 190A(6A)(d)(i) of the NTA provides that one effect of amendment is to reduce the area of lands or waters covered by the prior application.

7. On 31 July 2023, a delegate to the Registrar concluded that the Marlinyu Ghoorlie amended application met the requirements of s 190A(6A)(d)(i) of the NTA, and the amended application was accepted without the requirement of the registration test.

8. Section 29(2)(b)(i) of the NTA defines a native title party as a registered native title claimant in relation to the lands or waters that will be affected by the future act. The proposed licence no longer falls within the Marlinyu Ghoorlie claim area due to the amendment of Marlinyu Ghoorlie’s claim area boundaries. Therefore, Marlinyu Ghoorlie is no longer a native title party in relation to the grant of the proposed licence. As only a native title party has standing to lodge an objection application and given Marlinyu Ghoorlie is no longer a native title party, I am not entitled to deal with the objection application.

Determination

1. The expedited procedure objection application in relation to the grant of exploration licence E70/5788 is dismissed pursuant to s 148(a) of the NTA.

Mr G Kelly
Member
28 September 2023