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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