Henry Richard Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v Destiny Nickel Pty Ltd & Anor

[2024] NNTTA 65

NATIONAL NATIVE TITLE TRIBUNAL

Henry Richard Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v Destiny Nickel Pty Ltd & Anor [2024] NNTTA 65 (6 September 2024)

Application No: WO2023/0505 & WO2023/0506

IN THE MATTER of an inquiry into expedited procedure objection applications

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

(native title party/Marlinyu Ghoorlie)

- and -

Destiny Nickel Pty Ltd

(grantee party)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	6 September 2024

Catchwords:	Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – s 148(b) – objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 30, 32, 109(1), 148(b) (the NTA)
Cases:	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: Tegan Fitzgerald, Mining Access Legal

Representative of the Government party: Andrea Wyles, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

1. This is a decision made under s 148(b) of the NTA, which empowers the Tribunal to dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails, within a reasonable time, to proceed with the application or comply with a direction of the Tribunal.

2. The State gave public notification of the proposed grant of two exploration licences to the grantee,[1] and included a statement that it considers the grants attract the expedited procedure.[2] The effect of giving such a notice is that unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith.

   [1] E 15/1976 & E 15/1977.

   [2] See s 29 of the NTA.

3. Marlinyu Ghoorlie is a registered native title claimant in relation to land and waters that will be affected by the grant of the licences and a native title party for the purposes of the NTA.[3] In this capacity, the legal representative for Marlinyu Ghoorlie lodged an objection application to the State’s inclusion of the expedited procedure statement.

   [3] See s 30 of the NTA.

Native title party’s failure to proceed

1. Following lodgement and acceptance of the objections by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. In accordance with the directions made in July 2024, Marlinyu Ghoorlie’s contentions and evidence were due on or before 16 August 2024. No contentions or evidence were received by this date, nor was any request for an extension of time made for Marlinyu Ghoorlie.

2. On 23 August 2024, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply, and that the objection was now at risk of dismissal under
   s 148(b) of the NTA. Marlinyu Ghoorlie was given until 30 August 2024 to provide a response or request further time. The other parties were also invited to provide any comments.

3. The Tribunal received no response by 30 August 2024, or at all. On 2 September 2024, the Tribunal emailed all parties to advise that the objection applications were now proceeding to dismissal.

Consideration of dismissal

1. Under s 148(b) the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.

2. In considering this dismissal, I have also had regard to the applicable principles set out in Teelow v Page.[4]

   [4] Teelow v Page at [13].

3. Marlinyu Ghoorlie have failed to progress the objection application within a reasonable period despite being afforded sufficient opportunity. They have failed to comply with directions set by the Tribunal, they have not provided any reason for their non-compliance, and no request for an extension of time has been made.

1. Unfortunately, Marlinyu Ghoorlie have failed to progress over 90 objection applications in the last 12 months leading to dismissal in similar circumstances.[5]

   [5] Tribunal records show 99 objection applications filed by Marlinyu Ghoorlie have been dismissed in the period of 6 September 2023 to 6 September 2024.

2. Having regard to all the facts and circumstances, I am satisfied that the objection applications should be dismissed.

Decision

1. The expedited procedure objection applications in relation to E 15/1976 and E 15/1977 are dismissed pursuant to s 148(b) of the NTA.

Lisa Eaton
Member

6 September 2024