Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie v Sean David Church & Ors

[2023] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie v Sean David Church & Ors [2023] NNTTA 29 (30 August 2023)

Application(s) No: WO2023/0388, WO2023/0389

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie (WC2017/007)

(native title party)

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Sean David Church, Simon Atherton, Edward John Snooks, and Glenn Edmond Boyes

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	30 August 2023

Catchwords:

Native title – future acts – 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, 109(1), 148(b)

Cases:

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

Representative of the grantee party: Simon Atherton

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

REASONS FOR DETERMINATION

Background

1. On 22 December 2017, Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie (Marlinyu Ghoorlie) applied for a native title determination pursuant to the Native Title Act 1993 (Cth) (the Act).  On 28 March 2019, the claim was entered on the Register of Native Title Claims. 

2. On 25 January 2023, in accordance with s 29 of the Act, the State of Western Australia (State) gave notice of its intention to grant prospecting licenses P15/6769 and P15/6770 (licenses) to Sean David Church, Simon Atherton, Edward John Snooks, and Glenn Edmond Boyes (together, grantee party). The s 29 notice included a statement that the State considers the grant of the proposed licences are future acts attracting the expedited procedure.

3. If the expedited procedure applies, then the State may grant the proposed licences without first requiring all the parties to negotiate in good faith about the grant in accordance with s 31 of the Act.

4. P15/6769 is located 24.6 km west of Coolgardie with an area of 1.7581 sq km.  P15/6770 is located 24.8 km west of Coolgardie with an area of 1.5542 sq km. The area of the licences is 100% overlapped by the Marlinyu Ghoorlie claim.

5. On 17 May 2023, Marlinyu Ghoorlie, as the relevant native title party, lodged an objection application to the State’s inclusion of the expedited procedure statement in each matter relating to the licences with the National Native Title Tribunal (Tribunal). Under s 32(4) of the Act, following such objections, the Tribunal is required to determine whether the grant of the proposed licences is an act attracting the expedited procedure. I was appointed by the President of the Tribunal to constitute the Tribunal for the purposes of this inquiry.

Relevant Facts

1. On 1 June 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  These directions were amended during a conference of the parties convened on 23 June 2023.  Under the amended directions Marlinyu Ghoorlie was due to provide its contentions and evidence by 4 August 2023. 

2. Marlinyu Ghoorlie did not provide its contentions and evidence by 4 August 2023, nor was any request for extension made for the native title party.

3. On 9 August 2023, the Tribunal emailed all parties noting that Marlinyu Ghoorlie had failed to comply and the objections were now at risk of dismissal under s 148(b) of the Act. The email outlined (emphasis in original):

   Parties were advised in the notification email: If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.

   Parties are now on notice this matter is at risk of dismissal. The native title party has until 16 August 2023 to provide reasons as to why compliance has not been met and request any further time, for the Member’s consideration and party input. Further time will not automatically be granted. If there is no response on or by 16 August 2023, the matter will be referred back to Member Eaton for consideration of dismissal.

4. No response was received by 16 August 2023.  On 17 August 2023, the Tribunal wrote to all parties and confirmed that no comments had been received and the matters would proceed to dismissal.

Consideration of Dismissal

1. The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[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.

   [1] See s 109(1) of the Act.

2. While the Tribunal has broad discretion to dismiss an objection application, it is not an action to be taken lightly. As a consequence of the dismissal of objection applications, native title parties will have no right to negotiate with respect to the doing of the act and the act may be undertaken validly.

3. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[2]  I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  Once an objection application is made it is incumbent on the objector to progress the application and to communicate with the Tribunal and all parties.  In David Stock v Giralia, the Tribunal outlined this principle:[3]

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

   [2] Teelow v Page, at [13]. 

   [3] David Stock v Giralia at page 6-7.

4. In this matter Marlinyu Ghoorlie have failed to progress the objection applications within a reasonable period of time, 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.

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

Determination

1. The expedited procedure objection applications in relation to P15/6769 and P15/6770 are dismissed pursuant to s 148(b) of the Act.

Lisa Eaton
Member
30 August 2023