Maxine Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v Jason Lee Murtagh and Anor

[2024] NNTTA 58

NATIONAL NATIVE TITLE TRIBUNAL

Maxine Dimer & Ors on behalf of the Marlinyu Ghoorlie Claim Group v Jason Lee Murtagh and Anor [2024] NNTTA 58 (13 August 2024)

Application No: WO2023/0818

IN THE MATTER of an inquiry into an expedited procedure objection application

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

(native title party/Marlinyu Ghoorlie)

- and -

Jason Lee Murtagh

(grantee party)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	13 August 2024

Catchwords:

Native title – future acts – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 30, 32, 109(1), 148(b) (the NTA)

Cases:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

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: Jason Lee Murtagh

Representative of the Government party: Andrea Pearce, 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 prospecting licence P 24/5669 to the grantee, and included a statement that it considers the grant attracts the expedited procedure.[1]  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] 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 licence and a native title party for the purposes of the NTA.[2]  In this capacity, the legal representative for Marlinyu Ghoorlie lodged an objection application to the State’s inclusion of the expedited procedure statement.  As a result, unless the application is withdrawn or dismissed, the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.[3]

   [2] See s 30 of the NTA.

   [3] See s 32(4) of the NTA.

Native title party’s failure to proceed

1. Following acceptance of the objection application by the Tribunal, I made directions in June 2024 requiring all parties to provide contentions and evidence for the conduct of the inquiry.  In accordance with those directions, Marlinyu Ghoorlie’s contentions and evidence were due on or before 17 July 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 29 July 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 5 August 2024 to provide a response or request further time. The other parties were also invited to provide any comments.

3. The Tribunal received correspondence from the grantee party on 5 August 2024, advising their support for the matter to be dismissed.  No other response, including from Marlinyu Ghoorlie, was received.

Consideration of dismissal

1. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[4]  I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  The Tribunal must also pursue the objective of carrying out its functions in a fair, just, economical, informal, and prompt way.[5] 

   [4] Teelow v Page at [13]. 

   [5] See s 109(1) of the NTA.

2. Once an objection application is made it is incumbent on the objector, in this case Marlinyu Ghoorlie, to progress the application and to communicate with the Tribunal and all parties.[6]  In this matter, 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. 

   [6] Stock v Giralia, 6-7.

3. 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. While the Tribunal has broad discretion to dismiss an objection application, it is not an action to be taken lightly.

4. Unfortunately, Marlinyu Ghoorlie have failed to progress over 90 objection applications in the last 12 months leading to dismissal in similar circumstances.[7]  Marlinyu Ghoorlie must carefully consider its obligation to promptly progress its objection applications in any future applications it wishes to make or pursue.  When directions are seemingly ignored by the applicant to the matter, without explanation and despite follow up, the resources wasted by the Tribunal and all parties to that application cannot and should not be overlooked.  

   [7] Tribunal records show 96 objection applications filed by Marlinyu Ghoorlie have been dismissed in the period of 12 August 2023 to 12 August 2024.

5. Having regard to all the facts and circumstances, I am satisfied that the objection application should be dismissed.  I strongly encourage Marlinyu Ghoorlie consider its conduct in all matters before the Tribunal moving forward.

Decision

1. The expedited procedure objection application in relation to prospecting licence P 24/5669 is dismissed pursuant to s 148(b) of the NTA.

Lisa Eaton
Member
13 August 2024