Doris Ryder & others on behalf of Lamboo/Western Australia/William Robert Richmond
[2011] NNTTA 65
•13 April 2011
NATIONAL NATIVE TITLE TRIBUNAL
Doris Ryder & others on behalf of Lamboo/Western Australia/William Robert Richmond, [2011] NNTTA 65 (13 April 2011)
Application No: WO10/944
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Doris Ryder & others on behalf of Lamboo – (WC99/20) (Applicant, native title party)
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The State of Western Australia (Government party)
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William Robert Richmond (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 13 April 2011
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA) ss 17, 18
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011) Hon C J Sumner
Little v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Rosas v Northern Territory (2002) 169 FLR 330 at 359
Silver v Northern Territory (2002) 169 FLR 1
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
Representatives of the Hema Hariharan, Kimberley Land Council
native title party: Ania Maszkowski, Kimberley Land Council
Representatives of the Domhnall McCloskey, State Solicitor’s Office
Government party: Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Melissa Watts, Hunt & Humphrey Project Lawyers
REASONS FOR DETERMINATION
On 10 March 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4323 (‘the proposed licence’) to William Robert Richmond (‘the grantee party’), and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The tenement comprises an area of 56.78 square kilometres located 52 kilometres south west of Halls Creek. It is 100 per cent within the registered native title claim of the Lamboo People (WC99/20 – registered from 17 September 1999). No other native title claims overlap the proposed licence.
On 12 July 2010, Doris Ryder & Others on behalf of Lamboo (WC99/20) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
On 22 July 2010, Hon C J Sumner was appointed as the Member for the purposes on the conduct of the inquiry. In accordance with standard practice, the Tribunal gave directions which included parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Following a number of requests for variation of compliance dates, the final dates were set down as 6 December 2010 for the Government party, 13 December 2010 for the native title party, and 20 December 2010 for the grantee party.
At the listing hearing on 24 February 2011, parties agreed that the matter would proceed to a determination on the papers, that is, without holding a further hearing. This followed a number of conferences and one request to extend direction compliance dates to enable parties to negotiate a Heritage Protection Agreement. I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).
The native title party lodged its contentions and evidence on 8 November 2010. The Government party lodged its contentions and evidence on 16 November and 6 December 2010. The grantee party lodged its contentions and evidence on 14 December 2010.
On 15 March 2011, I was appointed by Hon C J Sumner as the Member for the purposes of the conduct of the inquiry.
Legal principles
Section 237 of the Act provides:
237Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011), Hon C J Sumner (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576) (‘Little’). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
Government party and Department of Mines and Petroleum documents include: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and plan from the Department of Indigenous Affairs (DIA) Sites Register; a copy of the tenement application and the proposed endorsements and conditions of grant; and a tengraph Quick Appraisal.
A map prepared by the Tribunal’s geospatial services on 17 January 2011 shows that there are no Aboriginal communities within the proposed licence site. There are two communities (Birndirri and Jilariya) within approximately five kilometres of the western boundary of the proposed licence site.
DIA documents provided by the Government party, the grantee party and the native title party reveal no registered sites within the proposed licence. The Tribunal map shows seven sites within approximately five kilometres of the proposed licence boundary (identified as sites 13,783; 14,321; 21,256; 14,369; 21,255; 13,862; 12,925).
Government party documents establish the underlying land tenure of the proposed licence to be an Indigenous owned lease (I3114/1109) (100 per cent).
According to the list of tenements in the Quick Appraisal there are 20 dead exploration licences that overlap the proposed licence. Of these, two have been cancelled; five were surrendered; three expired; seven were withdrawn; and three were refused. It appears that mining and/or exploration has taken place on the proposed site since at least 1963 (with one tenement appearing to be granted in 1910). There seems to be no current exploration or mining activity in the proposed licence site. There are a number of tracks, watercourses and spring/soaks in the area, as well as an undeveloped deposit at Woodward Range and mine sites at Glenbuff, which also appear to be undeveloped according to the Quick Appraisal description.
The grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). According to documents provided by the Government party, these four conditions, and the following two other conditions, will regulate the exploration activities on the current proposed licence site:
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new licencee,
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
According to Government party documents, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:
1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence provided by the native title party
The native title party has provided the following documents:
A Statement of Contentions lodged on 8 November 2010.
·A signed and sworn Affidavit of Stan Brumby lodged on 8 November 2010. Mr Brumby does not live at the communities near the proposed licence (that is, Birndirri or Jilariya), but rather lives at Mardiwah Loop (approximately 55 kilometres from the proposed licence).
The Affidavit of Mr Brumby is as follows:
1.My name is Stan Brumby. My Aboriginal name is Majaju. I have Jangari skin, or subsection identity. I was born in approximately the 1930’s on Lamboo Station at a place called Jirdjidgi (in the vicinity of the proposed Exploration licences).
2.I am one of the senior people for the Lamboo Native Title Determination Application (WAD6095/98).
3.I know the area where Kallenia Mines Pty Ltd, “the grantee party”, has applied for Exploration Licence Number E80/4323, “the Exploration Licence Area”. I have been shown maps of the Exploration Licence Area. I grew up in and around the Exploration Licence Area and my family and I still visit that area. This country is called Nyulla Nyulla. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The area in the Exploration Licence falls on Lamboo Country.
5.I visit the Exploration Licence Area to hunt and fish in the creeks.
6.There is good hunting and fishing in many parts of the Exploration Licence Area. We hunt Goanna – Jarambi, Kangaroo – Jaji, Porcupine – Gunanunja, Bush Turkey – Bingirrljaru, and Emu inside the Exploration Licence Area. We use boomerangs and rifles to do our hunting there and we go as often as we can.
7.We also go fishing in the Exploration Licence Area, after rains and water holes fill up, we get bream and catfish.
8.When I visit my country I also get all kinds of bush vegetables and bush medicines. For example I get Kulibi (bush banana) and Junda (bush onion) and Bura (bush potato) and I also get gum from mardiwah trees, which I like to chew to make my stomach good.
9.There are hunting place and ceremony place all through there, all around.
10.I am responsible for all that area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
11.I know the Exploration Licence Area very well. There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance in the traditional religion of my community. We follow Waljiri for our ceremony and law, which you whitefella’s call the dreamtime.
12.There is a hill in the Exploration Licence Area near the top of Garden Creek which they can’t go to. If they go there they’ll get sick or hurt. The name of that place is Lalawun. They can go to Chinaman Bore but they can’t go there.
13.The old people used to do ceremony up there. They used to tell us stories. Today, I still do those ceremonies and have to train all the young people in all that.
14.You will find that there are all kinds of artefact scatters that our old people left around on that country, you might not be able to see them and we don’t want anyone to touch them.
15.We have lots of stories and songs about all of our Waljiri, many of which we can’t tell you about because you haven’t been initiated.
16.We remember the camps of our old people up and around the proposed Exploration Licence Area and down into the Exploration Licence Area. I spent much of my life walking around on that country with my old people. Old people told us to look after that Country. We don’t want to upset them.
17.We are looking after all the important places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it.
18.Mining mob must come and see us and might be we will say No. Or we might talk with them and make an agreement.
MAJOR DISTURBANCE TO LAND OR WATER
19.I am aware of the activities which the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the Exploration Licence.
20.White people and strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed if they touch any sacred site. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us.
21.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we frightened about white people strangers coming to our country because they just jump in anyway.
22.If strangers damage a site, artefact or other important place or thing, we feel very upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country.
23.If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
24.Strangers cannot help themselves to our country. They have got to ask us first. If we say, No, they must leave our country, but if we say, Yes, they can stay and talk with us. If they make money out of my country, they can maybe give my community a little bit because they are taking something from our country our land.
25.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings. If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road, and helping my community. This is because we are looking after this country, not strangers.
I accept that Mr Brumby has the authority to speak for country on behalf of the native title party.
Evidence provided by the grantee party
The grantee party has provided a statement of contentions received on 14 December 2010.
Community or social activities (s 237(a))
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including s 63, the standard conditions to be imposed on exploration licences, and the additional conditions/endorsements, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.
In relation to community and social activities at the proposed licence area, Mr Brumby states that he grew up in and around the proposed licence area and he and his family still visit the area (at 3). He states he hunts and fishes in the creeks and go ‘as often as we can’ (at 5-7). He also gets bush vegetables and medicines (at 8) and there are hunting and ceremony places ‘all through there’ (at 9).
The Tribunal’s geospatial services map shows that there are areas of significance near but not within the proposed licence area. This is confirmed by the DIA register of Aboriginal sites. I understand that the DIA register is not necessarily a register of all significant areas to the native title party in any particular area, and that there may exist areas that are not registered which have significance in relation to the native title party’s social and community activities.
However, the seven sites near the proposed licence site (identified by DIA as number 13,783; 14,321; 21,256; 14,369; 21,255; 13,862; 12,925) are of ceremonial and/or mythological significance.
The grantee party states in their contentions that the evidence in relation to social and community use of the areas within and near to the proposed licence area is not sufficiently particular to show an interruption or interference with these activities for the native title party. I agree with this contention. The grantee party has stated its intention to act lawfully and in accordance with the Aboriginal Heritage Act (AHA). In addition, the grantee party states that any restriction on the native title party’s community or social activities ‘...would, for safety reasons, be limited to the area where exploration is taking place at any particular time’ (at 11).
In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner, (‘Wilma Freddie’), affidavit evidence on behalf of a native title party indicated access to a proposed tenement was regular, but the evidence provided only general information on the present activities of the claim group. The Tribunal found (at [11] & [13]) the requisite level of interference with social and community activities was unlikely in that matter as there was little specific evidence of the activities carried out over the area. In the current matter, Mr Brumby’s evidence is also broad and does not contain detail as to who (apart from his family) performs activities on or near the area; what the activities are (apart from hunting, fishing and collecting bush food, in the broadest of terms); or how often activities are conducted (apart from, again, in the broadest of terms).
The size of the proposed licence is 56.78 square kilometres and the area of the Lamboo People claim is approximately 4028.84 square kilometres (according to Tribunal iSpatialView Overlap Analysis). Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner, I find that the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.
Hon C J Sumner in Tarlpa (at [121]) makes the point that ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ In the present matter, there has been previous mining and/or exploration activities on the proposed licence area for some time.
Taking all these factors into account I find that there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the AHA shows no registered sites within the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over that area or in the vicinity. As outlined earlier in this determination, there are 7 registered sites within 5 kilometres of the proposed licence. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. However, the AHA does protect all Aboriginal sites, whether on the Register or not.
In his Affidavit, Mr Brumby outlines a number of sites of significance to the native title party. For example, he refers to a hill “near the top of Garden Creek” called Lalawun (at 12) where the old people did ceremonies and where Mr Brumby trains “all the young people in all that” (at 13). He also refers to artefact scatter sites and the camps of the old people “up and around the proposed Exploration Licence area” (at 14-16). Garden Creek does cross the southern portion of the proposed licence area, but the top of Garden Creek appears to be outside of the proposed licence area.
I am satisfied that the sites and areas mentioned in Mr Brumby’s Affidavit are of particular significance to the native title party in accordance with its traditions. I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.
The Government party relies on sections 17 and 18 of the AHA, and section 63 of the Mining Act to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance.
In addition, the Government party contentions at paragraph 5(d) indicate that the following condition will be placed on the grant of the proposed licence:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Lamboo People, the applicants in Federal Court application no. WAD6095 of 1998 (WC99/20), such request being sent by pre-paid post to reach the Licensee’s address, C/- Hunt & Humphrey Project Lawyers, Level 2, 20 Kings Park Road, West Perth WA 6005 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Lamboo the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups (e.g. the Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA) and offered by the Kimberley Land Council.
This suggests that should the KLC wish to adopt the terms of a RSHA, such would be executed in favour of the KLC.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
As outlined above, the grantee party’s attitude to the legislative framework relating to protection of sites is positive, as well as to the regulatory regime in general. I accept that the grantee party intends to act lawfully and in accordance with the AHA and the Mining Act.
The evidence of the native title party is broad and not particularised in relation to interference with sites of significance. The grantee party is now on notice that there may be sites which exist on the proposed licence area, which may or may not be on the public record, including artefact scatter sites.
Taking all of these factors into account, I find that there is not likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.
Major disturbance to land and waters (s 237(c))
As the Tribunal has noted, the starting point and precondition of any inquiry into major disturbance under this section of the Act is evidence of proposed physical disturbance of land and waters.
However, when assessing the likelihood of whether the physical disturbance will be major, it is open and appropriate for the Tribunal to consider how the physical disturbance will impact on the customs, traditions etc of the native title claimant group.
(see Rosas v Northern Territory (2002) 169 FLR 330 at 359 [84]) (‘Rosas’).
Mr Brumby provides evidence in relation to proposed tenement E80/4323 again in broad terms. His focus is on strangers needing to ask permission before coming onto country (at 19-24).
In relation to the question of the general impact of mining or exploration, there is insufficient evidence for me to conclude any negative inference against the grantee party. Further, there is little evidence before me in relation to a negative impact on land or water on or near the proposed licence area. It does not seem to me that there has been sufficient nexus provided or evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas, nor in my view is such disturbance likely to be considered major by the general community as required by Silver v Northern Territory (2002) 169 FLR 1.
The position of the native title party in relation to this limb does not seem to be pressed or elaborated upon in its contentions. Consequently, I am unable to find any evidence that would lead me to the conclusion that there is any likelihood that such disturbance might occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/4323 to William Robert Richmond (grantee party) is an act attracting the expedited procedure.
Helen Shurven
Member
13 April 2011
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