Mervyn Councillor & Others on behalf of the Southern Yamatji People v Coventry Enterprises Pty Ltd and Another [2020] NNTTA 59

The Southern Yamatji People objected to the expedited procedure for an exploration license granted to Coventry Enterprises Pty Ltd by the Western Australian government. The Tribunal held that the expedited procedure did not apply.

This case was a win for the Southern Yamatji People and the protection of their culture.

Background 

The State of Western Australia granted an exploration license to Coventry Enterprises Pty Ltd (Coventry) within Southern Yamatji country following an expedited procedure in July 2019. The license was over an area of unallocated crown land and a public road. It was granted for the purpose of exploring for gold and other metals.

Expedited procedure

The expedited procedure allows an applicant to address native title rights and interests faster than through the right-to-negotiate process. This occurs when the State believes the requested activities will have minimal effect on native title rights and interests.

The State considers whether granting the exploration license attracts the expedited procedure, accounting for the native title protection conditions (NTPCs).

If there are no native title parties or no objections have been lodged, the native title process is completed within 4 months after the notification day. The exploration authority can be granted with the NTPCs.

If a registered native title party objects to the expedited procedure, the parties begin negotiations, and the process can take a further 6 or more months to resolve.

Facts in this case

The Western Australian government notified the Southern Yamatji under s 29 of the Native Title Act 1993 (Cth) (NTA). As a result of the expedited procedure, the obligation to negotiate in good faith with native title holders under s 31 of the NTA is removed. 

Under s 31 all native title parties must be given the opportunity to make submissions and they must negotiate in good faith. Conditions may also be applied to the license. If requested, an arbitral body may help the parties negotiate the expedited procedure. 

In this case, native title had been negatively determined in the license area, but because the determination was not yet in effect, the Southern Yamatji continued to act as a native title party in relation to the license area. This means they were able to object to the license.

On 9 August 2019, the registered Yamatji Nation native title claimant lodged an objection against the expedited procedure. 

In light of Southern Yamatji's objection, the Native Title Tribunal was required, under s 32(4) of the NTA, to determine whether the grant of the license was an act attracting the expedited procedure.

Submissions made in the case

Submissions made by the Southern Yamatji People

The Southern Yamatji contended that the license presented a risk to their social and spiritual practices in the area. To support this, the Southern Yamatji argued that this license could not attract the expedited procedure due to ss 237(a) and (b) of the NTA. Under s 237 of the NTA, the grant of the license will only attract the expedited procedure if it is not likely to, amongst other things: 

1. interfere directly with the community or social activities of the holders of native title in relation to the license area; or
2. interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders. 

In relation to s 237(a), the Southern Yamatji People presented evidence that if the license was granted it would directly affect activities such as hunting, camping, caring for and maintaining areas of importance.

In relation to s 237(b), the evidence presented described spiritual stories and beliefs linked to springs found within the area, which would also be interfered upon if the license proceeded.

On the basis of this evidence, the Southern Yamatji argued that the expedited procedure could not apply.

Responses by Coventry and the State

Coventry and the Western Australian Government accepted the traditional and social practices of the Southern Yamatji in the contentious area. However, Coventry submitted that the activities under the license would have only a low impact and no disruptive effect on community social activities. They also stated that they could avoid areas of campfires and gatherings. 

The State added that even if the activities of the parties do intersect, that does not mean there is a real chance of substantial interference.

Coventry also contended that similar exploration had previously taken effect in this area and that they would not control access to the license area.

The State on the other hand suggested that a water management plan take effect to manage the springs in the area. Notably, the State's water management plan acted to minimise water damage and did not impede on the spiritual concerns of harm to the springs.

Proposal for a Regional Standard Heritage Agreement

There was also the suggestion that Coventry enter into a Regional Standard Heritage Agreement (RSHA), which would address how to reduce interference. However, the State did not explain whether or how this would be applied once the Yamatji Nation Claim determination takes effect.

The Tribunal considered the option of an RSHA and decided that it did not mitigate interference on the area.  

Decision 

The Tribunal held that the expedited procedure did not apply as a result of ss 237(a) and (b) of the NTA being met. 

In spite of the continued use of the land for community and social activities in the licensed area during previously completed mining activity, this license was still held to directly interfere with do not need a precise analysis, all that is required is a sufficient connection. As such, an interference with the Southern Yamatji practices and beliefs was established and an expedited procedure was not applicable. 

The National Native Title Tribunal held that the granting of an exploration lease did not attract the expedited procedure process under the NTA.

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