Nerida Cooley
This decision was related to Southern Yamatji’s objection to an exploration licence (E59/2373) granted to Coventry Enterprises Pty Ltd by Western Australia. Western Australia considered that the licence attracted an expedited procedure and notified Southern Yamatji under s 29 of the Native Title Act 1993 (Cth) (‘NTA’). Interestingly, Southern Yamatji was a native title party by virtue of a negative determination of native title, covering the licence area, which had not yet taken effect.
Background
Western Australia notified Southern Yamatji of its intention to grant the exploration licence to Coventry with an expedited procedure in July 2019. An expedited procedure removes the obligation to negotiate in good faith with native title holders under s 31 of the NTA. The licence concerned a small area of unallocated crown land and a public road (Morawa Yalgoo Road), totalling 1203Ha. Coventry intended to explore for commercially viable quantities of gold and other metals by drilling to at least 100m, budgeting $33,000.
In February 2020, Southern Yamatji’s native title claim, which included the licence area, was consolidated with other claims in Geraldton and the South West. Subsequently, in Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42, native title was negatively determined. Neither the determination nor licence had taken effect, hence Southern Yamatji was still a native party and able to object to the licence.
Submissions
Southern Yamatji contended that the licence posed a real risk to interfere with their social and spiritual practices in the area. It was argued that ss 237(a) (b) of the NTA were met, as the licence (a) directly interfered with community social activities of native title holders, and (b) interfered with sites of traditional significance. These circumstances precluded the expedited procedure under the NTA. Firstly, it was shown that the licence area was used for hunting, camping, caring for and maintaining places of importance, directly linked to the native title rights and interest claimed. Secondly, evidence provided described spiritual stories and beliefs inextricably linked to temporary and permanent springs in the area. These identified concerns if correct rituals are not followed and the springs are harmed.
The State largely supplemented the Coventry’s contentions. Both parties accepted the traditional social and spiritual practices of the Southern Yamatji in the area. However, Coventry contended that their activities would have low impact and lacked real disruptive effect on community social activities. Coventry submitted that it could avoid areas of campfires and gatherings. A condition in the licence for Coventry to enter into a Regional Standard Heritage Agreement (RSHA) to consult on how to reduce interference was also proposed. However, it was not explained how this would apply after the Yamatji Nation Claim determination takes effect. The fact that exploration with similar impact had occurred previously on the area and Coventry would not control access to the licence area were other rebuttals given. The State further contended it had endorsed a water management plan to manage the springs in the area.
Decision
The Tribunal considered the objection and determined that the expedited procedure did not apply, as neither ss 257(a) nor (b) of the NTA were met.
The Tribunal considered various reasons relating to the proposed licence and Southern Yamatji’s connection to the area. The RSHA was not seen to actually mitigate interference on the area. Despite evidence that Southern Yamatji continued to carry out community and social activities in the licence area during previous mining activity, the licence was still deemed to directly interfere with this. The State’s water management plan was to generally minimise water damage and did not alleviate the spiritual concerns of harm to the springs. The Tribunal noted precedent relating to determining ‘interference’ under s 257 of the NTA, which only mandates a proximate cause of the apprehended interference, rather than precise analysis. As interference with Southern Yamatji practice and belief was found, an expedited procedure was deemed inappropriate.