O'Brien v Newton

[2017] NSWLEC 1073

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

O'Brien v Newton [2017] NSWLEC 1073

Hearing dates:

1, 2, 3 June, 17, 18 August and 26 August 2016, 8 and 14 December 2016

Date of orders:

08 March 2017

Decision date:

21 February 2017

Jurisdiction:

Class 8

Before:

Dixon C

Decision:

1. The appeal is dismissed

2. The exhibits are returned

Catchwords:

MINING – access management agreement for small scale title in Lightning Ridge – Part 10A MINING ACT 1992 -

Legislation Cited:

Land and Environment Court 1979
Mining Act 1992

Category:

Principal judgment

Parties:

Maxine Anne O'Brien (Applicant)
Wayne Stuart Newton (Respondent)

Representation:

Counsel:
Dominic Williams (Applicant)
Ian Coleman SC (Respondent)

  Solicitors:
L Moore, Moore & Co Solicitors (Applicant)
M Waring, Waring Legal (Respondent)

File Number(s):

2016/00151825

Publication restriction:

No

Table of Contents

Judgment

Jurisdiction

Agreed matters

The Hall decision

Specific issues with respect to the location of access roads on “Malabar”

Issue (1)

The Court's determination, following consideration of Ms Robinson's evidence which is advanced by Mr Newton, as to whether the dam on OPB 187 should continue to be accessed from the existing eastern track or by a loop access road around its western boundary.

Finding – Issue (1)

Issue (2)

Whether the grid and gate on the boundary of “Malabar” and “Morella’ should be accessed by SST holders.

Finding – Issue (2)

Issue (3)

Whether OPB 182 should be accessed by the south-western corner of OPB 185.

Finding – Issue (3)

Issue (4)

As noted earlier at [17] issue 4 concerning the Silt Creek Quarry was not agitated at the hearing.

Finding – Issue (4)

Issue (5)

This issue has been described as the Roxburgh Junction with OPB 178 and OPB 179 and 180.

Finding – Issue (5)

Issue (6)

Access through OPB 183 and 184

Finding – Issue (6)

Issue (7) –

Reinstatement of the gate to “Roxburgh

Finding – Issue (7)

Issue (8) –

Location of Access routes in relation to stock watering points

Finding – Issue (8)

Issue (9) –

Location of access routes in relation to fences

Finding – Issue (9)

Issues not pressed by Mr Newton in the AMP (Exhibit 1G)

Cover page

Recitals

Definitions

Exercise of Access

Review of Access Management Plan

Access

4A "restricted zones"

Repairs to access roads and tracks

Access tracks to mining titles from Primary access roads

Establishment of further internal primary access routes

Conditions for use of primary access roads and access tracks

Directions

Final Orders

Judgment

1. This judgment, which deals with an Access Management Plan (AMP) under Part 10A of the Mining Act1992 (the Act) for the property known as “Malabar”, needs to be read with my earlier judgment in Lightning Ridge Miners Association Limited v Hall & anor (hereafter referred to as Hall); delivered on 23 December 2016. Collectively, the judgments address all relevant matters raised by the parties including my views on the application of relevant statutes and statutory interpretation.

2. In this case the Plaintiff, Ms Maxine O'Brien, is the Secretary of Lightning Ridge Miners’ Association Ltd (the LRMA), and the appointed miner's representative for the purposes of facilitating an AMP for “Malabar” except for those areas that are statutorily exempt from access.

3. The Defendant, Mr Wayne Newton, has owned and managed “Malabar” under Western Lands Lease No 4663 since 1973.

4. “Malabar” is situated on Wilby Road in far north-western New South Wales and has an area of 6,862 hectares. The land is comprised of a mix of black soil and red ridge country and Mr Newton runs beef cattle, wool sheep and goats on “Malabar”. In favourable seasons, he also grows barley or oats for stock fodder.

5. “Malabar” is part of the Narran-Warrambool Reserve, which is within the Yuwaalaraay and Gamilaraay lands of the Walgett region. The Dharriwaa Elders Group (the DEG) is the traditional Aboriginal owner of the area and has a strong spiritual connection to the Narran-Warrambool Reserve. The reserve is a cultural landscape, based in part on “the location of story lines and traditional pathways” through the reserve. These pathways were mapped by the National Parks and Wildlife Service (the NPWS) in 2005. Exhibited to Mr Newton’s affidavit dated 29 October 2015 (the Newton affidavit) is a map marked “WN2” which shows the location of Aboriginal archaeological sites identified by the NPWS at the time. I am told that no further “formal” environmental assessments have been prepared for the specific natural and cultural values of “Malabar” since the NPWS survey; however, Mr Newton believes that the survey with respect to culturally significant sites for the Aboriginal people is still applicable to “Malabar” at this time – although he defers to the views of Aboriginal people – in particular, the views expressed by his witness, Ms Virginia Robinson, an Elder of the DEG. Ms Robinson has deposed two affidavits on behalf of the Defendant in these proceedings about sensitive cultural areas on “Malabar”. She also gave oral evidence to the Court during its site inspection of “Malabar” in respect of three particular areas, namely, scarred trees in OPB 178 and, south of that area, the Silt Creek Quarry approximate to OPB 182, and the box gum trees to the dam on OPB 187. Ms Wendy Spencer, a project manager and video-maker who accompanied Ms Robinson on an earlier inspection of “Malabar” on 23 October 2015, has also prepared two affidavits. Both these witnesses’ affidavits were read without objection, or the need for cross-examination.

6. Apart from its Aboriginal cultural heritage, “Malabar” is also recognised for its native vegetation management. Mr Newton’s affidavit records that he has been actively engaged in conservation and rehabilitation works on “Malabar” for the last 42 years. In recognition of Mr Newton’s, and his wife’s, conservation and rehabilitation efforts, I understand they received Commendations from the local Catchment Management Authority (the CMA) (now the Local lands Service (the LLS)) for controlling invasive native scrub (INS). Since 1996, in partnership with the NPWS, “Malabar” has been part of a biodiversity project aimed at protecting both Aboriginal archaeological sites identified by survey, and the natural environment.

7. The evidence is that Mr Newton has undertaken significant conservation and rehabilitation works on “Malabar” pursuant to property vegetation plans (PVP) and NAP/NHT Activity Subsidiary Agreements/Contracts over the years (referred to in his affidavit as “the 2005 Pasture Contract”, “the 2007 Pasture Contract” and “the 2008 Contract”), in addition to his own improvements to “Malabar”. I am told the work undertaken on “Malabar” for native vegetation is considered by the Western CMA as one of five demonstration sites set up in the Western CMA to inform future policy. The various PVP, contracts, documents, reports and Aboriginal archaeological survey materials referred to in the Newton affidavit are exhibits to the affidavit. More recently, Mr Newton has participated in the LLS Red Ridge Rehabilitation Project. Through this project, he has continued his campaign to control INS and re-establish native grasses so as to return the land to its natural state of open grassy woodlands. Mr Newton lists, in his affidavit at [25] that he carries out mechanical INS treatment, pest control, weed control and fire INS, in addition to vegetation management practices, grazing practices and fencing upgrades.

8. Exhibited to Mr Newton's affidavit and marked “WN 23” is a map of “Malabar”, which was one of the maps referred to during the Court's view. It became Exhibit 1C in the proceedings. The coloured map conveniently identifies a number of matters, including the property boundaries, the Red Ridge Rehabilitation Projects for the land; the areas exempt from mining; the black soil areas and the Opal Prospecting Blocks for “Malabar” as declared to date. The map is reproduced below.

9. Put simply, Mr Newton opposes opal prospecting and mining on “Malabar” on two bases. The first is that it poses a significant threat to known and unknown Aboriginal sites on “Malabar”, and the second basis is his belief that if these activities (both mining and access) are not monitored on or near the areas described by the PVP and contracts then there will be irreparable damage to “Malabar” which will render worthless the conservation and rehabilitation programs undertaken to date.

10. Despite these views, Mr Newton accepts that “Malabar” is within Opal Prospecting Area 3 and that, under the terms of his Western Lands Lease, the land can be lawfully accessed for opal prospecting via an Access Management Plan (AMP). To that end, in accordance with the Court’s direction, Mr Newton prepared a draft AMP in response to the version served by the Plaintiff. Mr Newtown’s draft AMP is marked Exhibit WN22 to his affidavit. He invites the Court to determine access to “Malabar” in accordance with Part 10A, having regard to his substantial conservation efforts to date, his commercial farming enterprises on the land, and the avoidance of those areas on “Malabar” which contain culturally sensitive sites for Aboriginal people.

11. The Plaintiff believes that she has proposed access points and access routes on “Malabar” pursuant to s 236D(1)(a)(i)and (ii) of the Act which accommodate, as best she can, Mr Newton’s requirements. In short, the LRMA’s position is that their proposed access routes avoid identified culturally sensitive areas and, where possible, the conservation and rehabilitation works on “Malabar”, either pursuant to a Voluntary Conservation Agreement (VCA) or other contracts by using existing tracks.

12. Relevantly, Part 10A of the Mining Act does not expressly refer to Indigenous heritage lands, culturally sensitive areas, or the like. Save as to the limited extent that the Commonwealth Native Title Act has application in s236A of the Mining Act; the Act is silent with respect to such matters. Nonetheless, I accept that s236D provides opportunity, in appropriate circumstances, to make provision for clauses in an AMP in relation to s236D (1) (b) (iii) avoiding interference with the land management practices being adopted in relation to the land affected by the right of way , and pursuant to s236D (1) (b) (iv) for environmental protection.

13. Mr Newton deferred to the views of his Aboriginal witnesses’ evidence about culturally sensitive areas and sacred sites on “Malabar” and, to the extent relevant their evidence has been accommodated without objection by the Plaintiff. This approach has avoided the need for me to determine the ambit of the provisions of s236D (1) (b) (iv) and the interplay of Part 10A of the Mining Act and any interpretation which might purport to override Commonwealth or state law concerned with the preservation or protection of the environment including culturally sensitive areas and such other rights (DWS dated 14/7/2016 at [31]).

Jurisdiction

14. The Court’s jurisdiction to determine an AMP for “Malabar” arises under s236G of the Act following Ms O’Brien’s application to the Court. It is the fact that the parties have been unable to negotiate an AMP for “Malabar”, and the Secretary of the Department has declined to determine the AMP (Ms O’Brien’s affidavit dated 11 March 2015 (Exhibit 1F).

15. In accordance with s 41A the Court Act, the parties to these proceedings participated in a conciliation conference: s 41A (2). The conference preceded the hearing and included a site view. It was attended by the parties and their lawyers and some of the witnesses.

16. As no final agreement was reached during the conciliation, in accordance with s 41A (2) (b), as presiding Commissioner over the conference, I terminated that process and commenced hearing the proceedings forthwith.

Agreed matters

17. With the agreement of the parties the hearing preceded on the basis that :

1. the evidence taken on site and given during the conciliation conference was evidence in the hearing;

2. as a result of Ms Robinson's evidence on site about the cultural significance of the Silt Creek Quarry, it was agreed that no track access is be provided in that area;

3. The map entitled “Malabar” produced by the parties in the conciliation conference, and marked Exhibit 1A (attached to this Judgment) records in BLUE - the access routes disputed by Mr Newton. The PINK highlighter identifies the main road to the property, and the ORANGE highlighter identifies - the Plaintiff's preferred primary access routes;

4. the final draft AMP produced by Mr Newton following the conciliation conducted before the hearing is Exhibit 1G and refers to the map Exhibit 1A (the blue lines indicating the two proposed access areas to which Mr Newton objects);

5. The Plaintiff’s final draft AMP is attached to her affidavit sworn on 10 August 2015 (Exhibit 1E). It is based, substantially, on the AMP for “Muttabun”, as determined by the Land and Environment Court on 25 May and 21 July 2015;

6. the marked-up version of the final draft AMP (Exhibit 1 G) containing (in red text), the Defendant’s preferred terms it is submitted provides a convenient starting point for a consideration of the final form of the AMP in these proceedings (hereafter referred to as “the marked-up AMP”).

18. In accord with the parties’ invitation I have referred to the marked – up version of the final AMP (Exhibit 1G) in this judgement. That said, I must acknowledge that I have had some difficulty in co-ordinating the parties’ written submissions with the relevant clauses in Exhibit 1G given the discrepancies between the numbering in the exhibit and the Plaintiff’s submissions referring to the numbering in Exhibit 1 E. In the ultimate Mr Newton did not press all of the red text in Exhibit 1G. Some of the matters not pressed are identified at p21 of the Defendant’s Outline of Written Submissions (DWS) dated 25 August 2016; the others not pressed were identified during final oral submissions.

19. Despite that I believe that I have resolved the issues that remain outstanding. Later in this judgment I have given directions for the preparation and settlement of the final AMP for “Malabar”.

20. Before I deal with a determination of the location of the access roads and specific matters in the AMP I think it is useful to record at this point that I have determined that the Plaintiff’s version of the AMP in Exhibit 1E (which is the black text in Exhibit 1G) is generally acceptable subject to some specific clauses pressed by the Defendant which are appropriate for “Malabar”. For example, I think it is reasonable in this case to include the red text in cl 9(4) (a) and (b) of Exhibit 1G requiring a max 40km per hr driving limit on access roads when visibility is poor due to weather or when livestock is in the vicinity or crossing the access routes. The evidence is that Mr Newton uses the same access roads for stock movement and other farm management practices and this additional clause in my assessment protects both parties’ interests and does not unreasonably inhibit access for the land. Similarly, given the Defendant’s land management practices and his efforts to control weeds etc. it is appropriate that the landowner should be notified if the titleholder notices any exotic species on the land. Therefore, cl9 (14) should also be included.

21. I also am of the opinion that cl 9 (20) of Exhibit 1 G which deals with the use of explosives should be included in the AMP as this will allow Mr Newton time to relocate his stock away from areas where explosives will be used and is not an unreasonable requirement to protect both parties use of the land.

22. Clause 11A of Exhibit 1G with respect to the removal immediately of waste is not necessary given the opal prospecting licence conditions (Exhibit 1E). I am dealing only with access not use of the title area.

23. I also wish to make plain at the outset that cl 8 of Exhibit 1G - dealing with “Establishment of further internal primary access roads” - should be as per the black text only. I will deal with this in detail later but note that the Defendant appreciates that I am unable to legally include these other parties in this AMP.

The Hall decision

24. My decision in Hall dealt with the following issues :

1. Whether the holders of small-scale titles (SST holders) pursuant as part 10 A of the Mining Act 1992 (the Mining Act) must maintain public liability insurance with respect to their activities on access routes created by an Access Management Plan (AMP) made pursuant to the Act;

2. Whether SST holders must maintain registration in compulsory insurance of motor vehicles driven or operated by or on their behalf on access routes created by an AMP;

3. Whether motor vehicles driven or operated by or on behalf of SST holders on access routes created by an AMP must only be driven or operated by persons holding licenses entitling them to drive or operate those vehicles or class of vehicles;

4. Whether the hours of access prescribed by clause 45(8) (c) of the regulations made pursuant to the Act (Regulation 45(8) (c)) should be varied.

25. Having found against the Defendant on the above issues it follows that the red text in the marked-up AMP requiring vehicle registration, driver licencing and insurance covered in cl 2 (4), (5) and (6) and access hours in the marked-up AMP cl 9(13) need to be deleted to accord with my findings in Hall. The Plaintiff’s clause in respect of vehicle identification cl12 (the black text in Exhibit 1G) should be included but amended to include the final sentence in red text pressed by the Defendant as stated in cl12 of the AMP in Exhibit 1G namely:

“Any changes to such details following notification shall be advised within 24 hours to the landholder”.

I have included this sentence because I think this is reasonable as it will help to address Mr Newton’s concern about unauthorised use of tracks by people other than titleholders on “Malabar”, risks to biosecurity/ contamination and rural crime etc. The inclusion of this requirement does not preclude a titleholder using another vehicle if, for example, his own vehicle breaks down; but ensures that Mr Newton is notified of that fact within a 24 hour period so that he can control any unauthorised vehicles on his land. The inclusion of this clause means that it is not necessary to require vehicles to be marked and identified with large signage/ writing (as on mine sites) as was submitted by the Defendant. In any event, such a clause is in my opinion impractical and of little utility.

26. Before I deal further with the specific clauses in the final AMP it is useful to divert and determine the remaining agreed issues with respect to the access roads and other matters.

Specific issues with respect to the location of access roads on “Malabar”

27. The remaining issues as agreed between the parties are listed below.

Issue (1)

The Court's determination, following consideration of Ms Robinson's evidence which is advanced by Mr Newton, as to whether the dam on OPB 187 should continue to be accessed from the existing eastern track or by a loop access road around its western boundary.

28. It is agreed that Ms Robinson told the Court during the view that the puddling dam was created in what would have been the centre of the “maadhay”. The “maadhay” was caused by Baayaamii, the Gamilaraay Creator Spirit. Consistent with her affidavit evidence, [9] of Exhibit 100, Ms Robinson explained that Baayaamii’s footprint is in areas where water and plants flourish and, in this instance; the dam was within Baayaamii’s footprint. The area contains Brindle Box trees and Bambul trees in surrounding vegetation. Ms Robinson is concerned that any further access to the dam should not destroy the remaining Brindle Box trees and other vegetation, as this is a culturally sensitive area. In saying this, she conceded that the existing track had to some extent already damaged some of this vegetation. Accepting that the area was already damaged by the existing track Ms Robinson told the Court that the Brindle Box and other vegetation surrounded the whole of the dam. To avoid further damage Ms Robinson suggested that access should be around the western loop road and not on the eastern access as it currently stands.

28. In circumstances where the access road has already damaged the culturally sensitive landscape on the existing eastern access, I am concerned that the loop road proposed on the western side will cause additional/new damage to this culturally sensitive vegetation. Mr Newton and Ms Robinson accept that the puddling dam needs to be accessed for mining. The Plaintiff submits that use of the existing road is appropriate as this avoids new/further damage to the western vegetation which, I understand on the evidence of Ms Robinson, is culturally sensitive and not yet damaged.

29. In order to minimise damage, whilst acknowledging the damage to certain Brindle Box trees and other culturally sensitive vegetation as conceded by Ms Robinson, I think it appropriate to avoid any further or new damage to the western side of the loop road and allow the existing eastern track to continue to be used, as the damage is already done. In the end, Mr Newton and the plaintiff were both concerned to respect the cultural value of the “maadhay” on OPB 187 to the Yuwaalaraay and Gamilaraay people. The Defendant submits that s236D(1) (b) (iv) of the Act provides a jurisdictional basis for acceding to the Elders wishes in relation to the access road Friends of Mallacoota Inc v Minister of Planning & Minister for Environment and Climate Change (2010) VS 222. As it happens Mr Newton (a party to the proceedings) has advanced a position consistent with that of Ms Robinson about the cultural sensitivity of the “maadhay” and the Plaintiff is supportive of that view therefore it is not necessary for me to decide the jurisdictional entitlement of the Elders under s236D (1) (b) (iv) to protect the “maadhay” – in my assessment of the evidence.

Finding – Issue (1)

31. To be clear, I have decided that the existing eastern track around the puddling dam should continue to be used and identified for such use on the AMP. The western side of the loop road around the puddling dam should not be used as an access track. In my assessment this outcome preserves the culturally sensitive of the “maadhay” – in accord with my understanding of Ms Robinson’s final evidence as submitted by the Defendant taken onsite.

Issue (2)

Whether the grid and gate on the boundary of “Malabar” and “Morella’ should be accessed by SST holders.

32. The Defendant, Mr Newton, does not want access to “Morella” through the existing gate and grid on the boundary between “Malabar” and “Morella”. The gate and grid are jointly owned by Mr Newton and his neighbour. His evidence is that there has been no active mining or opal prospecting on “Morella” in the last 10 years and no practical need for a SST holder to access from his land at that point. Mr Newton does not want the gate available and potentially abused by miners or other unauthorised people as he concerned about rural crime, the safety of his property and biosecurity. He also said that his neighbour does not want through access at this point.

33. The Plaintiff conceded that the sole reason for seeking to be able to access the grid/gate was to enable future access between Malabar to Morella. She confirmed that there is no current opal mining activity on “Morella” as far as she was aware.

Finding – Issue (2)

34. Based on the evidence before me I do not consider that this gate and grid needs to be open for access to STT holders. In any event, no access is possible unless or until the adjoining landowner facilitates it through an agreement or an AMP determined by the Court. This matter can be revisited if a need to use the gate and grid access is made out on new evidence.

Issue (3)

Whether OPB 182 should be accessed by the south-western corner of OPB 185.

35. The Plaintiff's preferred access route is to traverse OPB 185 in broadly a north –south direction. The Defendant suggests a track to the south-west 100 metres from that point identified by the Plaintiff. The area in dispute is highlighted blue on Exhibit 1A.

36. The evidence is that OPB 185 is land within the Red Ridge Rehabilitation Project Area. As indicated on Exhibit 1C, there is an existing track which avoids crossing this land which is currently the subject of pest control, weed management and other vegetation management practices in accordance with the Red Ridge Rehabilitation Project.

37. While I appreciate that the existing track would require the SST holders to travel further to access OPB 182, given the evidence before the Court about Mr Newton's extensive conservation and vegetation management programs which include the area covered by OPB 185, on balance the extra distance required is not so inconvenient to justify interference with his land management programs and in the interests of environmental protection of this area: s236D(1)(b)(iii) and s236 D (1) (b) (iv) of the Act.

Finding – Issue (3)

38. The existing track is made and its use avoids unnecessary interference with the landholder’s grazing practices, pest control and weed control measures. I find that there should be no access via the track as proposed by the Plaintiff from across OPB 185 to access OPB 182 but in the location advocated by the Defendant.

Issue (4)

As noted earlier at [17] issue 4 concerning the Silt Creek Quarry was not agitated at the hearing.

39. For the reasons detailed in Ms Robinson's affidavit, at [11] particularly, and after a consideration of her oral evidence on site, given the sensitivity of the Silt Creek Quarry located on “Malabar”, the parties accepted that this area should not be part of the approved access route.

Finding – Issue (4)

40. The AMP should record the agreed position of the parties that there is to be no access through this area known as the Silt Creek Quarry.

Issue (5)

This issue has been described as the Roxburgh Junction with OPB 178 and OPB 179 and 180.

41. There is currently an access road past identified scarred trees located in the vicinity of the junction of OPBs 178,179 and 180. There are more scarred trees located south of OPB 178 in the black soil which is within “Malabar”. Ms Robinson, on site, explained to the Court the significance of the scarred trees and the need for the access routes to avoid those sacred sites. The Plaintiff tendered an aerial photograph, marked Exhibit 1B, identifying the AIMS register locations for the scarred trees. The aerial photograph shows the existing track which currently comes close to, but the parties agree avoids, the scarred trees and sensitive area. After travelling along the track and then the indicative track within 10m of the fence line (roughly constructed by Mr Newton for the purposes of the hearing) and appreciating the position of the scarred trees and sensitive areas identified by Ms Robinson’s evidence I am satisfied that the track in this area as proposed by Mr Newton would not adversely impact upon the scarred trees identified in the AIMS register indicatively plotted on the Google map or shown to me by the parties and Ms Robinson during the view That said, Mr Newton has offered to accommodate further Ms Robinson’s concerns by providing a greater buffer to avoid the scarred trees by commencing the access track to OPB 180 and 181 a distance of 100 metres from the corner south of OPB 178 –in the area marked X on Exhibit 1A.

42. The Plaintiff submits that Mr Newtons’ suggestion is impractical as a new track in that location would need to be forged through the scrub and this would be an expensive and unnecessary exercise given there is an existing track which traverses OPB 183 and 184 and provides good direct access to 180 and 181. This would avoid the scar trees area and not require new works.

Finding – Issue (5)

43. For the reasons that will become apparent I do not accept the Plaintiff’s preferred access route through OPB183 and 184. That said, I am satisfied that the area we travelled to access OPB 180 and 181 past the scarred trees is acceptable based on my observations at the view and after taking into consideration Ms Robinson’s written and oral evidence about the cultural significance of this area and the scarred trees. I find that this track which is existing should be nominated in the AMP. However, should Mr Newton choose to construct a new track 100m away from this approved access track in deference to the Elders’ wishes then the AMP can be amended to reflect the new position but in my assessment this is not necessary.

Issue (6)

Access through OPB 183 and 184

44. This issue of access through OPB 183 and 184 is perhaps the most contentious issue between Mr Newton and the Plaintiff (DWS at pp. 26, 27). The area in dispute is highlighted blue on Exhibit 1 A.

45. It is common ground that the access to the southern boundary of these blocks will necessarily be across OPB 185. According to Mr Newton the existing farm track, which he described as his “wet weather road” located on Exhibit 1A through OPB 183 and OPB 184 is vital because it provides the only wet weather access he has to his shearing sheds when other tracks are flooded. His evidence is that he drives his sheep along this track and is concerned that use of by SST miners will impact upon his farm management practices. The area covered by OPBs 183 and 184 have been improved pursuant to Incentives INS Contract 0362/2007/IP , which the defendant entered into in 2007 (see annexure WN8 to affidavit of 29 October 2015) and it is submitted that it should be protected pursuant to s236D (1) (b) (iii) or s236D (1) (b) (iv) of the Mining Act.

46. Mr Newton also said, and it was accepted, that he had expended vast amounts of money on extensive hinge and wire fencing of the paddock covered by OPB 183 and 184. The evidence is he has no other such fence on his property, and that he locks the gate along that fence to ensure that his sheep or goats remain within the paddock as best he can control them. He is very concerned that the SST holders will not lock the gate securely and therefore his sheep or goats will leave the area.

47. During the conciliation Mr Newton reconsidered his position in respect of access through OPB 183 and 184 and conceded that access could be centralised along the track for SST holders up until the marked highlighted blue point on Exhibit 1A described as the bore and windmill. However, he vigorously disputed the need for further access along the track and through the gated paddock to facilitate access into OPB 181 and 180 and beyond.

48. The Plaintiff seeks direct access along the entire length of the existing wet weather track to OPB 183 and 814 and 180 and 181 right up to the boundary with “Roxburgh”. The access road is also sought because it provides easy direct access to the processing plant on OPB 187, although it was conceded that the northern OPBs on “Malabar” have lawful access to the processing facilities on the Coocoran opal fields to the north east of “Malabar”.

49. For most of the hearing the Plaintiff also pressed for the reinstatement of the gate on the boundary of “Malabar” and between the Defendant’s land and “Roxburgh” which it was agreed was removed between 2002 and 2007 by Mr Newton and his neighbour. However, the Plaintiff offered not to press for the reinstatement of this gate provided it was given access through OPB 183 and 185 and then onto 180 and 181 along the existing wet weather road. In any event, Mr Newton does not want the gate reinstalled at this juncture for security reasons. He is particularly concerned that miners from the Coocoran fields will use this access path through his land and this will prove to be a security risk to his property. It will also adversely impact on his efforts to control weeds and maintain biodiversity.

Finding – Issue (6)

50. Given my earlier finding that the access route proximate to the scar trees satisfactorily avoids the sensitive cultural area and sacred sites - (referred to in both of the Aboriginal witnesses’ evidence) – or for that matter a new track 100m south of that location if Mr Newton elects to provide one - there will be no requirement for SST holder to have an access along the entire length of the wet weather road through 183 and 184 to the “Roxburgh” border as sought by the Plaintiff. Having said that, it is useful that the existing track through 183 and 184 be used to the point allowed by Mr Newton being the borehole and the windmill on Exhibit 1A. This will centralise access to the identified end point in OPB 183 and still preclude use of the road to the locked gate. On balance the expense Mr Newton has borne for the erected fence to contain his goats together with his efforts to control weed infestation in that area will be better maintained in my assessment if the gate remains locked and only used for his farming purposes and / when access to the shearing shed is not available any other way.

Issue (7) –

Reinstatement of the gate to “Roxburgh

51. This issue is whether the fence between “Malabar” and “Roxburgh” should be made a gateway where OPBs 180 and 181 meet on the boundary. After observing the site and considering the adjoining land uses at the present time and for the security reasons expressed by Mr Newton I do not believe it is necessary to require the reinstatement of the gate to “Roxburgh”. It was removed over 14 years ago on the evidence.

52. The Plaintiff has suggested that the puddling dam and processing area “Roxburgh” could be used but there is no AMP for that area at this point of time and there is already access to a processing plant in OPB 187 and obviously Mr Newton may decide (as Mr Slack – Smith did) to provide for a further processing plant somewhere else on the property.

Finding – Issue (7)

53. In my assessment the evidence does not establish a need for the reinstatement of the old gate at this time. No doubt this issue can be reconsidered should fresh evidence establish such a need in the future.

Issue (8) –

Location of Access routes in relation to stock watering points

54. As stated at the outset the evidence establishes land management and /or environmental protection practices have been adopted on “Malabar” for almost two decades pursuant to a number of agreements as set out in Mr Newton’s affidavit. The evidence also establishes that such practices are directed to environmental protection. The Defendant submits that interference with those management practices is prohibited by the Native Vegetation Act 2003, NSW. It is further submitted that a failure to reflect and protect the land management practices being adopted in relation to “Malabar” would be contrary to s236D (1) (b) (iii) and (1) (b) (iv) of the Act. The Defendant requests for a clause prohibiting “any access route from passing within 200m of a stock watering point, to avoid interference with the land management practices on Malabar, which encompass stock management and to preserve the safety of stock”.

55. In my assessment, to adopt the Defendant’s position would have the effect of precluding any reasonable access to “Malabar” for SST holder to access their titles. The fact is that “Malabar” is held by Mr Newton under a Western Land lease within an identified opal prospecting area. SST access is permitted under the terms of the lease and the Act. The evidence establishes that for many years Mr Newton and his family held mineral claims for opal on “Malabar”. (PWS at [49]). While Mr Newton’s efforts to rehabilitate “Malabar” are commendable the contracts and agreements for rehabilitation and the like were made subject to the Act and his efforts to date have been carried out in the full knowledge that the land was available for opal prospecting. In my assessment it is unreasonable on any view of the evidence to require an access road to be 200m from a stock watering point. There is simply no satisfactory evidence before me of any damage to stock or interference with land management practices generated by the location of an access road within 200m a watering point. The access roads referred to in this case are not unreasonably close to watering points, as far as I understand the evidence, and any future tracks to allow a titleholder to access his title beyond an existing track nominated on this AMP cannot be unreasonably impeded by such a restriction. Relevantly, the conditions of the titleholder’s licence will preclude prospecting in certain areas of a title including; within 200m of a woolshed, a shearing shed or stock watering place, and that in my assessment of the available evidence in this case that is sufficient protection.

Finding – Issue (8)

56. In my opinion the Defendant appears to be confusing access for the land under an AMP to carry out prospecting operations on the land. They are different and obviously have different impacts. I am dealing with access not prospecting. The conditions of the SST holders’ licence in my assessment adequately protect Mr Newtons’ land management practices and the environment of “Malabar”. The Plaintiff’s AMP provides in cl2 (1) that

“The titleholder shall avoid so far as reasonably possible any interference with the use and enjoyment of the land by the landholder in relation to the use of roads, tracks and any other improvement and the grazing of livestock and other farming and grazing activities. The titleholder must exercise due care and vigilance when entering the land”.

These clauses and others in the AMP in my assessment are adequate to protect the land management practices of the Defendant in respect of stock watering points near access roads on the evidence before me. As with other issues, there must be a balancing of interests to determine what constitutes an unjustifiable interference with the land owner’s property rights under his conditional Western Land Lease and the right to access under an AMP. I do not believe it is reasonable or necessary to impose a clause under s236D in the terms sought by the defendant on the evidence before me.

Issue (9) –

Location of access routes in relation to fences

57. Mr Newton would like the AMP to require by a clause that “There shall be no driving of vehicles within 50m of a fence of any kind except on those roads and tracks shown on the attached map”. In short, no access route should pass within 50m of a fence - (except for the fence adjacent to the Roxburgh boundary). Mr Newton is concerned about damage to fences and cattle laneways being impeded along the fence line. Mr Newtons’ fears however, are not supported by any objective or acceptable evidence to support a finding that the location of an access route needs to be more than 50m from fence lines in order to maintain their integrity and to avoid their damage. Even accepting that they are significant improvements in the absence of any evidence of damage to fences caused by the location of an access way within 50m of the fence I do not think it is necessary to impose the clause proposed by Mr Newton in cl4 (4) of the marked – up AMP.

58. Clause 8(4) of the marked – up AMP provides

“If a titleholder damages a fence , grid or gate the titleholder shall make the fence, grid or gate stock proof immediately and repair it and make good to the standard of the original fence, gate or grid, within seven days or as soon as practicable thereafter” .

In my assessment this clause adequately deals with the issue of avoiding damage to fences caused by the use of access routes proximate to fences.

59. I do not understand on the evidence how the Defendant’s proposed clause would “preserve stock laneway use by the landowner or avoid environmental damage to fences” on “Malabar”. Mr Newton said he uses the wet road access for his sheep and stock laneways. One would assume, in the absence of any reliable evidence to the contrary, that if Mr Newton wishes to run his stock proximate to the fences on “Malabar” he may still choose to so do and give notice of that activity to SST holders to ensure the safety of his stock at that time.

60. SST holders must repair any damage to fences under the terms of their licence and the AMP advocated by the Plaintiff. In addition, the Minister has established the Small Scale Title Levy Fund under s292SA (1) of the Act which levies funds for the provision of and maintenance of roads serving SSTs and road related infrastructure (including gates and grids and signs) and rehabilitation or environmental maintenance work on stockpiles of mullocks upon application.

Finding – Issue (9)

61. In my assessment there is no evidence to suggest that Mr Newton’s stock or property will be better protected by imposing clauses which preclude access roads within 200m of stock watering points or 50m of property fences as proposed. Statutory exclusion zones under the Act have been accommodated in my determination of contested access routes and in my assessment the distances provided for by the Plaintiff’s nominated access routes respect those considerations. To impose the Defendant’s restrictions has the potential to unreasonably preclude a titleholder access to his or her tile area on Malabar. The Defendant’s clause, as the Plaintiff submits would have the effect of sterilising mining activities by increasing the area where no surface activity may occur. Moreover, in circumstances where there is an existing track along a fence it would be more environmentally harmful to create a new tract at a specified 50m distance from the fence.

62. Despite the above finding, I note that the Plaintiff has agreed for the imposition of cl4 (3) in Exhibit 1E which provides: “There shall be no driving of vehicles within 10m of a fence where there is a clear 50m fire break except on those roads and tracks shown on the attached maps”. While the Plaintiff submits that from the satellite images there did not appear to be any fire breaks 50m wide on “Malabar” but if there are the Plaintiff has no objection to retaining this clause (PWS at p16 at [43(iii)]. The Plaintiffs clauses offer a reasonable compromised position in my assessment. I accept the inclusion of cl4 (3) of Exhibit 1 E in the AMP as it will assist in protecting land management practices on “Malabar”.

Issues not pressed by Mr Newton in the AMP (Exhibit 1G)

63. My findings in respect of the clauses not yet addressed in the final draft AMP in Exhibit 1G are set out below. They are responsive to the parties’ oral and written submissions and the evidence. As already stated there are several clauses in red text on Exhibit 1G which the Defendant no longer presses. Conveniently, the DWS have summarized some of these “no longer pressed clauses at pp21 -24” and I will record those matters as deleted as I work through Exhibit 1G.

Cover page

64. Starting with the Cover page of Exhibit 1G it is agreed that the Opal Prospecting Blocks crossed out in red text namely 177,178-182,183,184,185 are to be included in the cover page.

65. The words “using only the designated Access routes” are to be deleted because they are confusing and inconsistent with the intent of Part 10A which is to provide access for the land for existing and future title holders to access their titles. For example, a SST holder may need to leave a “designated access route” to get to his title because the access route is flooded. The words are restrictive and cannot be validly included in the AMP under Part 10A.

66. The Plaintiff seeks the words “most practical” inserted in paragraph 2 of the Cover page and given the Aboriginal witnesses’ evidence about, for example, the scarred trees and other areas of cultural significance on the property which need to be avoided and Mr. Newton’s evidence about flooding of areas of the property and his need to use the wet weather track because other tracks are not passable, I believe it is reasonable and in fact useful to include this qualification proposed by the Plaintiff in paragraph 2 of the Cover page.

67. It is agreed after the sentence “… that are necessarily ancillary to mining activities” the words “which are lawfully conducted” should be included, and to make it very plain, I agree with the plaintiff that some identification of the permissible ancillary lawful uses need to be particularized in this instance such as “puddling location or a rehabilitation stockpile access to inspect an Opal Prospecting Block to mark out a new mineral claim” – these are sufficient in my opinion. The inclusion is necessary to avoid any misunderstanding by the Defendant or SST holders as to what are some of the lawfully activities permissible subject to the terms of this AMP. Put simply, it avoids confusion. The third red text paragraph on Exhibit 1G commencing with the words Access across the property is agreed to be deleted.

Recitals

68. Recital "A1" asserted by the Defendants is not pressed as an AMP has that meaning and effect pursuant to the Act in any event. It needs to be deleted.

Definitions

69. To the extent that the provisions of the AMP to which they relate do not form part of the AMP as determined by the Court, the "definitions" of those matters will be excised from the final AMP. The words “whole of the” property are not necessary as it is clear from the Act that the AMP refers to the whole of the property. The Defendant accepts these changes.

Exercise of Access

70. In relation to "exclusion zones" (clause 2 "EXERCISE OF ACCESS"), the Defendants rely upon the provisions of the Act in that regard. Therefore, the Defendant submits that all red text inserted by the Defendant under this heading can be deleted and the provisions of the Mining Act and the terms of the determined AMP can be relied upon instead. Apart from clause 2(7) of the draft AMP, which the Defendant presses.

71. While I do not believe it is necessary to repeat all relevant statutory obligations in the AMP (although I fully appreciate I may do so under s236D) I have decided to retain the Defendant’s cl 2(7) as outlined in red on Exhibit 1G because of the particular evidence from the Defendant’s witnesses Ms Robinson and Ms Spencer about Aboriginal objects and cultural sacred places on “Malabar” (Exhibit 1B). In effect cl 2(7) serves as a notation which may serve to remind SST holders of the cultural sensitivity of areas of “Malabar” and their obligations under the National parks and Wildlife Act 1974 and the conditions of their titles. I am satisfied that I have power to impose such a clause as the notation falls within the broad topic of “environmental protection” under s 236D (1)(iv) - even though the Mining Act does not expressly refer to Indigenous heritage lands ,culturally sensitive areas or the like – save as to the limited extent in s236A.

Review of Access Management Plan

72. As per Exhibit 1G in black text as previously approved.

Access

The Access Table proposed by the Defendant only refers to existing roads and access tracks as indicated on the map. Section 236 C provides that the Court may determine an AMP either before or after small scale titles are granted in relation to the land. Therefore, as an AMP is to provide access for future small scale titles the Access Table set out in Attachment 5 of the Defendant’s AMP (Exhibit 1G) cannot be incorporated because is it inconsistent with Part 10A.

73. As the Plaintiff rightly submits the Table purports to bind access to particular titles to particular access routes and the Table does not take into account secondary and future access roads and routes as anticipated by Part 10A of the Act. Accordingly, all references to the Access Table are to be deleted from the AMP.

74. Clause 4(2) is not pressed by the Defendant, as the access routes determined by the Court pursuant to the Act will have the force and effect articulated by those provisions. Therefore, delete clause 4 (2) (DWS p21 Para [6]).

75. Clause 4 (1) and (red 3) to be numbered (2) in black text are not disputed as far as I understand the Defendant’s final position. The black text is included.

76. I have already dealt with cl4 (4) in some detail. In summary, the defendant Mr. Newton presses clause 4(4) of the draft AMP, on the basis that fences are significant improvements, and that the evidence of past damage to fences supports such a distance, that such distance would not disadvantage SST holders, that such distance preserves stock laneway use by the landholder, and avoids environmental damage. It seems the Plaintiff accepts a modified clause stating

“There shall be no driving of vehicles within 10m of a fence where there is a cleared 50mfire break except on those roads and tracks shown on the attached maps” (PWS at [58]).

From the satellite images before the Court there did not appear to be any fire breaks 50mwide on Malabar but if there are the Plaintiff has no objection to retaining this modified cl4(4). In the circumstances cl 4 (4) as proposed by the plaintiff is to be included rather than the Defendant’s proposed wording.

77. However, the balance of the red text in cl4 is deleted given my findings in respect of vehicle registration, licensing and public liability insurance for the reasons articulated in the Hall proceedings to which Mr. Newton was a party.

78. For completeness I note that the marked plan showing access routes that have been designated as access routes for the purposes of this AMP is Exhibit 1C as amended by this judgment. However, it is a complicated map which contains some matters that do not need to be referred to for the purposes of this AMP. A fresh map (similar to that attached to the Plaintiff’s Exhibit 1E) needs to be marked up with the determined access roads and features such as the Silt Road Quarry area, scarred trees at Roxburgh Junction, the windmill on OPB183 ,the wool shed on OPB180 - as per my judgment. This will be the map for the purposes of cl4 (1) of the AMP.

4A "restricted zones"

79. The DWS at p23 paragraph 10 outline the defendant’s final position in respect of cl 4A "restricted zones" in the Newton case. The submission is “in relation to 4A “restricted zones“ in the Newton case , the limited ambit of dispute after the conciliation of the matter, the reality that the AMP will address those issues, and the ongoing operation of exclusion zones pursuant to the Act obviate the necessity to continue to press for clauses 4A(1) and 4A(2)”. Therefore clause 4A (1) and 4A (2) are deleted.

80. The provisions of clause 4A(3) have been asserted by the landholder out of respect for the concerns expressed to the Court by the Dharriwaa Elders Group in affidavit and oral evidence. The limited ambit of remaining dispute with respect to the location and route of access roads, the agreed avoidance of a number of admitted areas of Aboriginal sensitivity, and the jurisdictional impediments to including clause 4A(3) in an AMP are acknowledged by Mr. Newton.

81. As the Defendant identifies I do not have jurisdiction under s10A of the Mining Act to impose cl 4A (3) on the AMP and it must be deleted. That said, in any event I am satisfied that the concerns expressed by the Aboriginal witnesses through Mr. Newton are satisfactorily accommodated by the access routes which have been agreed between the parties and /or imposed after careful consideration of the evidence including the site view by the Court .

Repairs to access roads and tracks

82. The Defendant submits that provisions of clause 5(1) with respect to "repairs to access roads and tracks" are probably adequately addressed by later clauses of the AMP concerned with "conditions for use of primary and access tracks" in the main.

83. The Plaintiff submits the cl 5(1) in black text should be included in the AMP because it is a working document and needs to be accessible and instructive to SST holders. Clause 5 as drafted in black text by the Plaintiff sets out clearly who the SST holder must report to in the event of any necessary access roads and tracks repairs or maintenance.

84. I accept the Plaintiff’s submissions. An AMP must be concise and to the point. Clauses of an AMP must be able to be enforceable by the Department. In my assessment the black text in cl5 and in the AMP Exhibit 1E (referred to as cl5 (1) and (3) Exhibit 1G) is concise and instructive and should be included.

85. It is submitted by the Defendant that the provisions of clause 5(2) should be included in the interests of safety, environmental protection, and property management: s236D (1) (b) (ii), (iii), (iv) – although the words "opinion of the landholder” are not pressed.

86. It is submitted that on the Plaintiff’s evidence (including that of an earthmoving contractor called by her), that the access roads are "rough", and, it is submitted, clearly require proper grading if they are to be other than inherently unsafe.

87. After a consideration of the parties’ submissions I have decided that cl5 (2) should not be included in the AMP. I am satisfied that the Plaintiff’s cl5 which requires notification to the landholder and other relevant bodies ensures that the maintenance/repair works to access tracks will be appropriately supervised so as to ensure the protection for the landholder’s property. Moreover, the clause refers to the funds from the levy established under the Mining Amendment (small scale title Compensation Act 2014) and supervision by the Miner’s representative.

88. The Plaintiff submits that clause 6, which prohibits tyre dragging or other grading methods, satisfactorily addresses the issue on the proviso that the landholder does not choose to interpret “any other leveling device” as a grader. There is no evidence to suggest that the landowner would not accept a grader as an appropriate leveling device so on that basis I am satisfied that the inclusion of cl 6 a serves a purpose of protecting access tracks from unnecessary damage and poor repair methods; s236D (1) (b) (i).

89. Particularly, in circumstances where a fund is expressly provided for the purpose of maintaining the access roads properly pursuant to the Act.

Access tracks to mining titles from Primary access roads

90. The Defendant does not press cl 7 of Exhibit 1G on the basis that the matters are adequately addressed by cl5 (1) and 5(3) in conjunction with later clauses of the AMP concerned with “conditions for use of primary and access tracks”.

91. I need say nothing more about cl 7 of Exhibit 1G it is not controversial and should be included.

Establishment of further internal primary access routes

92. The Defendant submits that the provisions of the clause headed "establishment of further internal primary access routes" which are contentious (8 on Exhibit 1G) have been advanced by Mr. Newton out of respect for the concerns of the Dharriwaa Elders Group. That said, the Defendant accepts that there is a jurisdictional impediment to the inclusion of the red text in its draft of cl 7 or 8 (DWS at p24 at [15]).

93. I agree with the Defendant and reject the red text as beyond power, but accept the inclusion of the black text which is supported by the Plaintiff, because in my assessment it protects both parties’ interests and facilitates mining in accord with the objects of the Act by allowing for the creation of new access roads. It requires written notice to the landowner and consultation between the parties on site (including the miner’s representative if required on behalf of the titleholder) with a view to reaching agreement as to the new route, design and method of construction. A written agreement is then required and the new road is required to be constructed at no expense to the landowner. In the event of a dispute, a mechanism to resolve the dispute is outlined referring the matter to the Court.

94. I am satisfied that the provision appropriately protects both parties’ interests.

Conditions for use of primary access roads and access tracks

95. The contentious provisions of cl 9 in Exhibit G1 headed "Conditions for use of primary access roads and access tracks", with respect to landholder indemnity/loss/damage it submitted are obviated by the inclusion of provisions for which the Defendants contended with respect to registered vehicles, licensing and registration.

96. Needless to say, the Defendant’s provisions were not accepted in Hall and it is my view that all of the red text proposed by the Defendant in the marked- up AMP in Exhibit 1 G relating to insurance claims including; cl 9 subcl 5 a) and b), (6) a) and b), (9), under the heading of “Conditions of primary access roads and access tracks” need to be deleted. I have formed this view because I believe that the AMP proposed by the Plaintiff in Exhibit 1 E or Exhibit 1 G ( black text) (with slight amendments as indicated) satisfactorily sets out the conditions for use of access roads - new and existing in the AMP in accord with Part 10A.

97. I have formed this view after a careful consideration of all of the evidence including Mr Newtons’ affidavit evidence and his oral testimony. In my assessment the obligations imposed on titleholders by the clauses of the Plaintiff’s AMP in cl 9 of Exhibit 1E (black text in Exhibit 1G) - together with the red text in cl9 subclauses (4) (14) and (20) which I have allowed, and the conditions of their prospecting licences, adequately protects the landholder from damage to his property including fences, grids etc. by titleholders as a result of the use of access tracks. In short, there is no satisfactory evidence before me of damage caused to such property arising from use of access roads to warrant the imposition of the clauses proposed by the Defendant in cl 9 subcl 5 a) and b), (6) a) and b), (9), Exhibit 1G (red text).

98. In saying that I appreciate that the parties have agreed that the AMP should require titleholders to exercise due care and vigilance when entering the land:cl2 (2).The parties have agreed that the AMP should include a provision that requires the titleholders not to drag tyres or any other levelling device on access roads and tracks except with the consent of the landholder: cl6. Furthermore, the AMP requires “As far as possible” there should only be one track extending beyond an access route to each group of contiguous mineral claims :cl7 (1). Titleholders shall at all times use that single track to travel to and from their claims, as far as practicable: cl7 (2). In the event of the necessity to create a further primary access track as stated earlier in this judgment the procedures outlined in respect of the creation of further internal primary access roads applies: see cl7 (3) and cl 8 of Exhibit 1G (black text). The procedures set out in cl7 are fair to both the titleholder and the landholder and provide a dispute resolution at [92] above.

99. The issue of "access times" in cl 9 (11) is submitted to have become controversy within a narrow compass during the course of the trial. The defendants submit that the AMP should provide in that respect:

“Other than in the case of emergencies, SST holders, their servants, agents, employees and contractors shall not use access roads later than fifteen minutes before sunset, or earlier".

I have dealt with this issue of hours in the Hall judgment and the AMP is to reflect that determination of hours.

Directions

100. In accordance with the observations made earlier in this judgment I give the following directions:

1. The Plaintiff is to prepare the draft AMP based on Exhibit 1 G subject to the changes I have identified in this judgment and the Hall decision.

2. The AMP map for access to “Malabar” is to be based on Exhibit 1C but needs to be amended to include the access routes and certain features of the land in accord with my findings in this judgment (as discussed at paragraph [78] above).

3. The Plaintiff is to provide the draft AMP for “Malabar” to the Defendant for its approval within 14 days before forwarding it to the Court at which time I will make final orders.

4. In the event that there is disagreement about any matter to be included in the AMP the parties are given leave to have the proceedings relisted for a telephone mention before me on 24 hours’ notice.

Final Orders

101. Following the delivery of my reasons for judgment on 21 February 2017 the Defendant advised the Plaintiff and the Court of the details of the sale of the property “Malabar”. In these circumstances the Plaintiff accepts that I have no jurisdiction and must order the dismissal of the proceedings. Accordingly, the Court orders:

1. The appeal is dismissed.

2. The exhibits are returned.

Susan Dixon

Commissioner

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Amendments

09 March 2017 - Final Orders made 8 March 2017

Decision last updated: 09 March 2017