Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie v MH Gold Pty Ltd and Anor [2019] NNTTA 109 (27 November 2019)

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

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

Brian Champion Snr & Ors on behalf of Marlinyu Ghoorlie (WC2017/007)

Native title - future acts - proposed grant of exploration licences - expedited procedure objection applications - failure to comply with directions - objection applications dismissed

Native Title Act 1993 (Cth) ss 29, 31, 32, 148

Teelow v Page [2001] NNTTA 107; [2001] NNTTA 107; 166 FLR 266

David Stock v Giralia Resources NL [2000] NNTTA 333

Mr Matthew Smith, Department of Mines, Industry Regulation and Safety

[1] In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licences E77/2011 (Amalg. No. 544936) and E77/2097 (Amalg. No. 544937) (licences) to MH Gold Pty Ltd (grantee party). The notification day was 8 May 2019. The s 29 notice included a statement that the State considers the grant of the licences are acts attracting the expedited procedure under the NTA (expedited procedure statement).

[2] If the expedited procedure statement applies, then the State may grant the licences without compliance with the negotiation procedure under s 31 of the NTA.

[3] The areas of the proposed licences overlap the area of the native title determination application made by the Marlinyu Ghoorlie claim group (WC2017/007) by 100 percent. On 6 September 2019, the registered native title claimant for the Marlinyu Ghoorlie claim group (native title party) lodged objections with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement.

[4] The native title party's objections were made within the timeframe required under s 32(3) of the NTA and therefore under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the licences are acts attracting the expedited procedure.

[5] The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in these matters.

[6] On 10 September 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. The directions were sent through email correspondence to all parties the same day. On 27 September 2019, I amended the directions at the request of the native title party. The amended directions were provided to all parties through email correspondence that same day. The native title party were directed to provide the Tribunal with a statement of contentions, documentary evidence and witness statements for the objection applications, verified where possible by affidavit, on or before 1 November 2019. The native title party did not provide any contentions or evidence by the due date and did not make any request for an extension of time to do so.

[7] On 4 November 2019 (and sequentially):

• the Tribunal wrote to all parties advising that the native title party had failed to comply with the directions made and the objections were at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 12 November 2019;

• the State wrote to the Tribunal formally requesting the objections be dismissed pursuant to s 148(b) as the applicant had failed to comply with (amended) direction 2;

• the representative for the native title party wrote to the Tribunal advising that 'on the basis that the native title party and grantee parties are working towards an agreement ... the native title party withdraws the above objections'; and,

• the Tribunal notified the parties by email that the objection applications had been withdrawn by the native title party and the matters were now finalised.

[8] Later that same day the representative for the grantee party wrote to all parties advising that there was no undertaking by the grantee party to negotiate an agreement in this matter.

[9] On 5 November 2019, the Tribunal wrote to the parties seeking clarity regarding the status of the objections. The representative for the native title party responded stating that the 'withdrawal was indeed intended to be conditional upon there being an agreement in principle to negotiate an HPA.... In the absence of that agreement in principle, the native title party is likely to wish to pursue the objection...'.

[10] On 6 November 2019, the Tribunal wrote to all parties advising them that the matters would be discussed at a case management conference before me on 14 November 2019.

[11] On 13 November 2019, the representative for the grantee party advised that the grantee supported the State's earlier request for dismissal based on the native title party's failure to comply.

[12] On 14 November 2019, the objection applications were discussed at a case management conference. Mr Blackshield referred to the correspondence Ms Smith sent on 13 November 2019 and advised that the native title party is not in a position to oppose the dismissal request.

[13] On 15 November 2019 and 21 November 2019 the Tribunal wrote to the native title party's representative requesting they clarify whether they intended to withdraw the objections or await my dismissal of the objections by close of business on 21 November 2019. No response has been received.

[14] Under s 148(b) of the NTA 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 application or to comply with a direction by the Tribunal.

[15] While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for the native title party, and is not an action taken lightly.

[16] 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 (at [13]). I have applied those principles in my consideration of these matters.

[17] I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection applications within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

[18] In this case the native title party has not given any reason for its non-compliance with the directions of the Tribunal outside of advising it is not in a position to oppose the State and grantee party's dismissal request, nor sought any additional extension of time. Further, the native title party has not responded to the Tribunal's requests for clarification of its intended course of action despite being given opportunities to do so.

[19] In the circumstances, the native title party has had sufficient opportunities to comply with directions set by the Tribunal or make another request for an extension of time. Having regard to all of the facts and circumstances of these matters, I am satisfied that the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licences are acts attracting the expedited procedure.

[20] The expedited procedure objection applications against exploration licence E77/2011 (Amalg. No. 544936) and exploration licence E77/2097 (Amalg. No. 544937) are dismissed under s 148(b) of the NTA.