Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie v Travis John Fluck and Another

[2023] NNTTA 27

NATIONAL NATIVE TITLE TRIBUNAL

Maxine Patricia Dimer & Ors on behalf of Marlinyu Ghoorlie v Travis John Fluck and Another [2023] NNTTA 27 (28 August 2023)

Application No: WO2023/0348

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

- and -

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

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

(native title party)

- and -

Travis John Fluck

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	28 August 2023

Catchwords:

Native title – future acts – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application 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: Travis John Fluck

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

REASONS FOR DETERMINATION

1. On 25 January 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 prospecting licence P26/4685 (licence) to Travis John Fluck (the grantee). The s 29 notice included a statement that the State considers the grant of the proposed licence is a future act attracting the expedited procedure under the NTA.

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

3. The proposed licence is approximately 1.6sq kms in size, located in the Kalgoorlie-Boulder region of Western Australia. The licence area is 100% overlapped by the native title determination application made by the native title party in the Marlinyu Ghoorlie claim (WC2017/007) (Marlinyu Ghoorlie).

4. On 17 May 2023, Marlinyu Ghoorlie lodged an objection to the State’s inclusion of the expedited procedure statement with the National Native Title Tribunal (Tribunal).

5. The objection application was lodged within the timeframe outlined in s 32(3) of the NTA, and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licence 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 6 June 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  Under those directions, Marlinyu Ghoorlie was directed to provide its contentions and evidence by 14 July 2023. The contentions were not received by this date, nor was any request for extension made for the native title party.

2. On 24 July 2023, the Tribunal wrote to all parties, via email, 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. The email outlined (emphasis in original):

   In the notification email, parties were advised:

   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 31 July 2023 to provide reasons as to why compliance has not been met, and request any further time, for Member Eaton’s consideration and party input.  Further time will not automatically be granted.  If there is no response on or by the 31 July 2023, this matter will be referred back to Member Eaton for consideration of dismissal.

3. No response was received by 31 July 2023.  On 7 August 2023, the Tribunal wrote to all parties and confirmed that no response had been received and the matter 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 NTA.

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.

4. In this matter Marlinyu Ghoorlie have failed to progress the objection application 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 application should be dismissed.

Determination

1. The expedited procedure objection application in relation to P26/4685 is dismissed pursuant to s 148(b) of the NTA.

Ms Lisa Eaton
Member
28 August 2023