Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Zetek Resources Pty Ltd (ATF The Zetek Trust) & Anor

[2024] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of Marlinyu Ghoorlie v Zetek Resources Pty Ltd (ATF The Zetek Trust) & Anor [2024] NNTTA 11 (5 March 2024)

Application No: WO2023/0486, 0512 - 0513

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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Zetek Resources Pty Ltd (ATF The Zetek Trust)

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	5 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)

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. On 3 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 P16/3339 - 3341 (proposed licences) to Zetek Resources Pty Ltd (ATF The Zetek Trust) (Zetek Resources). The s 29 notice 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 4.63 km². They are located approximately 28 km west of Ora Banda and sit adjacent to one another. The proposed licences sit wholly within the registered native title claim area of Marlinyu Ghoorlie (WC2017/007, WAD647/2017) (Marlinyu Ghoorlie).

4. On 13 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 20 June 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. The directions were amended on 25 October 2023 and Marlinyu Ghoorlie were directed to provide its contentions and evidence by 29 January 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from Marlinyu Ghoorlie.

3. On 30 January 2024, 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 6 February 2024 to provide a response. On 6 February 2024, the representative for Zetek Resources advised that as Marlinyu Ghoorlie’s compliance date had passed and it was unlikely there were unforeseen or extenuating circumstances to warrant non-compliance, they requested that the objections proceed to dismissal.

4. On 12 February 2024, the Tribunal wrote to all parties and confirmed that Marlinyu Ghoorlie had not provided a response 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 these matters.

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 non-compliance and no request for an 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 P16/3339 - 3341 are dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
5 March 2024