Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Border Exploration Pty Ltd
[2024] NNTTA 28
•30 April 2024
NATIONAL NATIVE TITLE TRIBUNAL
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Border Exploration Pty Ltd and Another [2024] NNTTA 28 (30 April 2024)
Application No: | WO2022/0884 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC (WCD2005/002)
(native title party)
- and -
Border Exploration Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 30 April 2024 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – evidence subject to non-disclosure directions – whether act is likely to interfere with areas or sites of particular significance – areas or sites are culturally sensitive – path of the restricted Tjukurrpa in the licence area as an area or site of particular significance – site associated with the restricted Tjukurrpa as an area or site of particular significance – entry into areas or sites of particular significance as interference – where the location of the path of the restricted Tjukurrpa is not mapped but is described in the evidence – where interference with the path of restricted Tjukurrpa in the licence area and associated site is likely – act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) Aboriginal Heritage Act 1972 (WA) ss 17, 18 Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 31, 151, 237 |
Cases: | Andrews and Others v Northern Territory of Australia and Another [2002] NNTTA 170; (2002) 170 FLR 138 (‘Andrews v Northern Territory’) Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24 (‘Geotech International’) Ipima Ikaya Aboriginal Corporation RNTBC v Latsod Pty Ltd and Another [2023] NNTTA 24 (‘Latsod’) Ipima Ikaya Aboriginal Corporation RNTBC v Silica Australia Pty Ltd and Another [2023] NNTTA 38 (‘Silica’) Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Russell Mining Pty Ltd and Another [2021] NNTTA 34 (‘Russell Mining’) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (‘Marputu v Gianni’) Nyamal Aboriginal Corporation RNTBC vs Red Rock Australasia Pty Ltd and Anor [2024] NNTTA 8 (‘Red Rock Australasia’) Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia and Ors [2005] FCA 831 (‘Ngaanyatjarra Lands Determination’) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (‘TMPAC v Lake Wells’) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (‘Tjiwarl’) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert v Teck Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title party: | Cerys Lloyd and Frances Nicholson, Ngaanyatjarra Council (Aboriginal Corporation) |
| Representative of the grantee party: | Ettienne van Tonder, Austwide Legal Pty Ltd |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Jake Lincoln, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Border Exploration Pty Ltd has applied for an exploration licence (E 69/3983) near the community of Warburton in Western Australia, about 250 kilometres from the Northern Territory border.
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC holds exclusive native title rights in trust for the People of the Ngaanyatjarra Lands in relation to the whole of the licence area (see Ngaanyatjarra Lands Determination). The licence area is about 333 km2 and the underlying land tenure is described as Aboriginal lease.
The State of Western Australia (acting through the now Department of Energy, Mines, Industry Regulation and Safety) considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean that the licence may be granted without first requiring Border Exploration, YNPAC and the State to negotiate in good faith about the grant.
YNPAC objects to the application of the expedited procedure to the grant of the licence. Despite framing its objection application in broad terms, the core of YNPAC’s argument is that the grant of the licence is likely to interfere with areas or sites of particular significance to the People of the Ngaanyatjarra Lands due to the existence of a highly sacred Dreaming track which travels through the licence area.
I am satisfied this matter can be adequately determined without a hearing: s 151(2) Native Title Act. For the reasons outlined below, I have determined that the grant of the licence is not an act attracting the expedited procedure.
When does the expedited procedure apply?
Under the Native Title Act, the expedited procedure will only apply if the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the native title holders’ community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters located in the licence area: s 237(c).
In order to determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences arising from the grant of the licence (in the sense of a real, not remote, chance) (see overview of approach in Yindjibarndi v FMG at [15]).
YNPAC does not make any contentions in relation to the application of ss 237(a) or (c). The Tribunal takes a common sense approach to the evidence (as discussed in Ward v Western Australia at [26]) and, therefore, the focus of my predictive assessment is interference with areas or sites of particular significance within the meaning of s 237(b).
What areas or sites of particular significance has YNPAC identified?
YNPAC relies on written evidence from Mr Andrew Jones, a senior Ngaanyatjarra man, and Ms Frances Nicholson, General Manager of the Land and Culture Unit and senior anthropologist for Ngaanyatjarra Council (Aboriginal Corporation), which acts as agent for YNPAC in this matter.
Due to the highly sensitive nature of the evidence, I made non-disclosure directions, which prohibit the disclosure of parts of the evidence, other than to specified persons for the purposes of this inquiry. Nothing in those directions prevents me from stating findings of fact on which my decision is based but, to the extent possible, I have refrained from disclosing the restricted information.
YNPAC contends that the evidence of Mr Jones and Ms Nicholson details:
(a)a “highly sacred, major Dreaming track” associated with a Tjukurrpa story which travels through the licence area, the name of which forms part of the restricted evidence (restricted Tjukurrpa);
(b)sites associated with the restricted Tjukurrpa located both within the licence area and in close proximity to it; and
(c)other major travelling Tjukurrpa tracks within or in close proximity to the licence area, some of which relate to the restricted Tjukurrpa.
YNPAC describes the restricted Tjukurrpa as “powerful Law business” subject to “heavy secrecy”, and says that it is “considered dangerous”. The evidence given is that it is a Tjukurrpa of the “highest order” known only to certain knowledge holders and that associated ceremonies and business are still practised today.
The specific sites or locations associated with the restricted Tjukurrpa identified by YNPAC are shown on maps attached to the affidavits of Mr Jones and Ms Nicholson. As acknowledged by Border Exploration, there is only one site shown in the licence area itself, being a named site in the central southern portion of the licence area, to which the restricted Tjukurrpa travels (Site 1).
Ms Nicholson’s affidavit also annexes a copy of a permit application form for entry which shows that Ngaanyatjarra Council does not issue transit permits for a road which passes near to Site 1 due to the sacred nature of the area, with the road being designated as “Not open to public – Sacred Land”.
The parties have had the benefit of the restricted evidence, and it is not necessary for me to outline it in any detail in these reasons. It is sufficient to note that the evidence clearly describes the restricted Tjukurrpa story and its path through the various sites identified, including Site 1, and why it is significant to the People of the Ngaanyatjarra Lands.
YNPAC contends that both the path of the restricted Tjukurrpa Dreaming track where it traverses the licence area and Site 1 are areas or sites of particular significance for the purposes of s 237(b). The State said little on this topic and appears to rely on Border Exploration’s contentions.
Site 1
In its contentions, Border Exploration questioned whether YNPAC was asserting that Site 1 is an area or site of particular significance, although it did acknowledge that the land and waters traversed by the restricted Tjukurrpa were said to be sites of particular significance to YNPAC and that the restricted Tjukurrpa travels through the licence area to Site 1. In any event, YNPAC confirmed its position in its reply.
There is no question that Site 1 is located in the licence area and I am satisfied on the evidence that Site 1 is an area or site of particular significance for s 237(b) due to its association with the restricted Tjukurrpa.
The path of the restricted Tjukurrpa
Border Exploration also questioned the location of the path of the restricted Tjukurrpa, saying that it is impossible for the path to be specifically identified in the licence area. In that respect, Border Exploration relies on Geotech International where the Tribunal noted at [44] that the evidence did not “specifically identify the locations of any sites within the proposed tenement area”. However, the Tribunal’s issue with the affidavit evidence in Geotech International was its general nature and the fact that none of the sites relied upon were said to be located in the tenement area. That is, the Tribunal was not satisfied on any measure that the sites in question were located in the tenement area – it was not a question of precise location.
What is required for s 237(b) is that the area or site of particular significance is known and able to be located (see Yindjibarndi v FMG at [17]). It follows that it is not necessary for the exact location of the restricted Tjukurrpa in the licence area to be identified with precision.
The evidence here clearly describes the path of the restricted Tjukurrpa in the licence area and, while the path is not shown on the mapping, the sites through which it travels are. From the affidavit evidence and mapping, I am satisfied that the restricted Tjukurrpa travels from a named site (Site 2) south westerly of the licence, into the licence area to Site 1 before continuing in a south easterly direction to two other named sites (Sites 3 and 4). That is sufficient for s 237(b).
Whether a Dreaming track is an area or site of particular significance is an issue that has been considered by the Tribunal on many occasions. As discussed in Andrews v Northern Territory at [124], the identification of a Dreaming track will not necessarily result in a finding of particular significance. The particular significance of the area or site associated with the Dreaming track needs to be adequately explained.
In this case, Ms Nicholson explains in her restricted evidence that, because of the means by which the restricted Tjukurrpa travels from Site 2 to Site 1 and onwards to Sites 3 and 4, the ground along that path is itself part of the track and regarded as sacred and highly sensitive. That is to say the evidence identifies a clear differentiation between the path of the restricted Tjukurrpa generally, and those specific parts of the path which involve travel by the means outlined by Ms Nicholson. This means of travel, as Ms Nicholson explains, also carries significance for the relationship between the restricted Tjukurrpa and another named Tjukurrpa. In an unrestricted passage from Ms Nicholson’s affidavit this part of the landscape is described as “a direct expression of [the restricted Tjukurrpa’s] being”.
In light of this evidence, I find that both Site 1 and the path of the restricted Tjukurrpa, where it travels through the licence area, are areas or sites of particular significance to the People of the Ngaanyatjarra Lands.
Is the grant of the licence likely to interfere with Site 1 or the path of the restricted Tjukurrpa?
What activities does Border Exploration propose to undertake?
The licence would be granted under s 61 of the Mining Act1978 (WA) for an initial term of five years. Section 66 sets out the rights of the licence holder. The licence will also be subject to a number of conditions and endorsements as provided by the State.
In his affidavit, Mr Matthew Blake, a director of Border Exploration, says that the company intends to explore for copper, gold, silver, uranium and rare earth elements, and plans to complete a staged exploration program.
The statement made under s 58 of the Mining Act, which accompanied the licence application, outlines the exploration activities proposed by Border Exploration during the first year of the term of the licence. According to Mr Blake, the initial work will comprise a review of existing data to identify areas for initial field reconnaissance and sampling, and airborne gravity and magnetic surveys. He describes this work as “campaign based” with about five people active in the field for between 10-20 days. Border Exploration contends this initial work will be low impact in that it will require minimal ground disturbance.
Depending on the outcome of these initial activities, the second stage of exploration may include drilling, the preferred method of which is to drill, likely rotary air blast drilling, in targeted areas of the licence. Where those areas are will, as I understand it, depend on the initial stages of exploration.
There is relatively little evidence of the specific activities proposed by Border Exploration throughout the term of the licence, with the focus being, unsurprisingly, on the initial stages. However, what that means for present purposes, is that it is reasonable to proceed on the basis that Border Exploration may avail itself of the full suite of rights available to it under the licence. I do note Mr Blake’s evidence that any drilling is likely to be targeted, although the target areas are not yet known.
What is the interference apprehended by YNPAC?
YNPAC contends that, under traditional Ngaanyatjarra law and culture, unauthorised persons are prohibited from accessing the areas and sites described, noting the information about these areas and sites is particularly sensitive and restricted to persons of a particular gender or status. Interference with the areas and sites of significance may result in severe consequences for the custodians, including physical punishment, sickness and shame. In her affidavit, Ms Nicholson outlines the strict access protocols associated with the restricted Tjukurrpa and related sites.
YNPAC is also concerned about inadvertent interference in the absence of consultation, particularly in light of the limited information regarding Border Exploration’s proposed activities or means of access to the licence. It further submits that there may be consequential interference with some of the linked sites outside of the licence, but that aspect of the apprehended interference is not explained in any detail.
Why does Border Exploration say there is no real chance of interference?
Border Exploration contends that there is no real chance of interference from the grant of the licence. It does so on four bases, summarised at paragraph 40(b) of its contentions.
Many of the arguments put by Border Exploration are echoed and supported by the State and each is addressed by YNPAC. It is therefore convenient to address each of these arguments in turn.
Border Exploration’s intention to finalise a heritage agreement with YNPAC
Border Exploration says interference is unlikely because its evidence demonstrates that it intends to finalise a heritage agreement with YNPAC. To support this contention, Border Exploration relies upon Mr Blake’s evidence that Border Exploration is ready, willing and able to negotiate the finalisation of a heritage agreement for the licence and that he understands YNPAC is similarly disposed. He also says that Border Exploration will consult with YNPAC prior to any entry onto the licence, including for “low impact” activities.
In reply, YNPAC agrees that entry into a heritage agreement is a desirable outcome and the most appropriate way to protect areas and sites of particular significance in the licence area. However, it points out that no agreement has been negotiated to date and there is no guarantee of that outcome. Additionally, YNPAC notes that Border Exploration has offered no evidence of how it proposes to finalise an agreement and what it proposes to include in such an agreement.
The Tribunal’s records reflect that the parties had been negotiating a heritage agreement at least up until Border Exploration was required to submit its material for the inquiry. It is not clear what, if any, progress has been made since that time. Mr Blake’s affidavit is dated 27 January 2023 and there is no indication that negotiations have been ongoing.
Therefore, while I do not question Border Exploration’s bona fides and can accept that Border Exploration is ready, willing and able to negotiate, there is very little concrete information to go on for my predictive assessment. As the Tribunal has observed on a number of occasions, a grantee party’s unenforceable good intentions alone are not sufficient to mitigate the risk of interference (see discussion in Tjiwarl at [67] and Latsod at [106]). Further, consistent with Tjiwarl at [106], if agreement is required to mitigate the risk of interference, that is perhaps a clear signal that the matter is one where negotiations under s 31 of the Native Title Act are appropriate (see also discussion in Silica at [90]).
Border Exploration’s commitment to consult with YNPAC prior to entry and to comply with conditions of access
Border Exploration argues that, because Ngaanyatjarra Land Council (Aboriginal Corporation) is the holder of the Aboriginal lease underlying the licence, it controls access to the area. Border Exploration goes on to say that it is required to, and intends to, consult with YNPAC to gain access to the licence area and to abide by any restrictions or conditions imposed by YNPAC or Ngaanyatjarra Land Council. In support of that contention, Border Exploration relies on Mr Blake’s evidence at paragraphs 21–23. However, that evidence is quite general in that Mr Blake simply makes a number of broad, motherhood type statements about Border Exploration’s intentions. These include its intention to avoid sites or areas of particular significance, work with YNPAC regarding the conduct of heritage surveys, comply with the conditions of any survey reports and implement appropriate policies and procedures for the effective management of heritage. No policies or procedures have been provided.
The underlying Aboriginal lease is not in evidence, but it does not appear to be in dispute that the lease is held by Ngaanyatjarra Land Council, rather than YNPAC. YNPAC refers to Ngaanyatjarra Land Council as a “related party” but, the relationship with YNPAC or Ngaanyatjarra Council, which acts as agent for YNPAC in this matter, is not explained.
YNPAC argues that considerations of access under the lease are irrelevant for my predictive assessment and should be disregarded. It says that there are other ways Border Exploration might be able to gain access to the licence area, such as by air or by applying for a miscellaneous licence. Again, there is nothing in the material to further explain those options. YNPAC also points out that this proceeding is concerned with the effect of the grant on matters concerning YNPAC, rather than questions of access or the possibility of one party leveraging the rights of another.
The arguments raised by the parties on the question of access are extremely general. Very little of what is said on this topic is explained in any detail or supported by evidence. As I have mentioned, there is no copy of the lease, nor any details regarding alternative access arrangements. Overall, I have very little to go on.
Rather, the arguments put by Border Exploration on this topic appear to be linked to its overarching argument that it intends to negotiate an agreement as it expects any conditions of access would be included in that agreement. As already observed, that is an admirable intention, but carries little weight for present purposes.
Therefore, while I can accept that Border Exploration would likely seek to include any agreed access arrangements in a heritage agreement, I am unable to draw any conclusion about whether or how the question of access would mitigate the risk of interference in this case.
Compliance with the State’s regulatory regime
The State’s regulatory regime, including the licence conditions and various legislative requirements, is relevant to my predictive assessment.
Since the commencement of this inquiry, there have been a number of well publicised changes to the Aboriginal cultural heritage laws in Western Australia. Those changes began with the commencement of the Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) in July 2023 and were followed by the subsequent repeal of that Act and amendments to the Aboriginal Heritage Act 1972 (WA) (AHA), commencing on 15 November 2023.
The parties were afforded an opportunity to make submissions in relation to each of those legislative changes. All parties made submissions on the ACHA. The State and YNPAC provided additional submissions on the amendments to the AHA. Border Exploration relies upon the State’s submissions on the AHA.
In both its initial contentions and reply, YNPAC raised a number of concerns about the extent to which the AHA could be relied upon to mitigate the risk of interference in this case, including questions about the application of the definition of “Aboriginal site” and limitations on the scope of activities prohibited under s 17 of the AHA.
These are not new issues. The Tribunal has observed on a number of occasions that the conduct caught by s 17 does not “cover the field” of interference for s 237(b) (see Yindjibarndi v FMG at [118] and Western Desert v Teck Australia at [114]). Similarly, as noted by former President Dowsett in Marputu v Gianni at [44], there is a “difference in focus” between the AHA and s 237(b) which can render it difficult to identify the extent to which the AHA might protect areas or sites of particular significance. As in that case, no party here has sought to demonstrate how the AHA might operate on the facts.
The limitations of the AHA have been particularly stark in cases, such as this one, where entry into the area or site of particular significance, other than in accordance with tradition, is said to constitute interference (see discussion in Russell Mining at [65]). This is also an issue on which YNPAC expanded in its reply, arguing that the mere presence of Border Exploration on the areas or sites of particular significance is an incursion which “falls short of the activities that are restricted by [s] 17”.
Those fundamental concerns have not been addressed by the other parties. In response to YNPAC’s concerns, Border Exploration initially relied upon the AHA regime being “bolstered” by the ACHA to support its contention that there is no real chance of interference in this case. It later submitted that I could take confidence from what it described as “significantly more stringent due diligence assessment obligations on grantee parties, including the obligations to notify and consult with Aboriginal [parties]”, including YNPAC. I suppose we shall never know because the ACHA has now been repealed. However, those comments are edifying with respect to the differing approaches taken under each Act and how Border Exploration saw YNPAC’s concerns being addressed, which was not through the application of the AHA.
The State similarly argued that negotiations with YNPAC under the ACHA would render interference unlikely but, for the most part, it no longer seeks to rely on its submissions on the ACHA. YNPAC submits that “it is incredulous that the reasons behind the failings of the AHA to [protect] Aboriginal heritage which the [State] sought to remedy by the ACHA should simply be forgotten”. Nonetheless, it is the amended AHA which is now in force and which I must consider in this matter.
Broadly speaking, the amendments to the AHA, key aspects of which were recently discussed in Red Rock Australasia from [55], focus on the process for consent to certain uses given by the Minister under s 18. They do not address any perceived gaps between the application of s 17 of the AHA and s 237(b) of the Native Title Act.
In its submissions on the AHA, the State also refers to the operation of its new consultation policy and AHA guidelines and argues that it is likely that any areas or sites of particular significance identified by YNPAC will have significant weight in the formulation of any recommendation to the Minister under s 18 of the AHA.
YNPAC acknowledges that the amendments incorporate broader rights for the participation of Aboriginal people in the s 18 process but argues the amendments do not address its concerns regarding inadvertent interference and are instead focussed on additional requirements where Ministerial approval is sought to disturb an identified site. In the context of this matter, YNPAC’s submissions have some appeal.
No doubt there may be some perceived improvements to the s 18 process. However, it is difficult to see how the amendments shift the dial to any significant degree in a case such as this where entry into the areas or sites of particular significance, other than in accordance with tradition, is said to constitute interference for s 237(b). The position remains that no party has addressed how the AHA applies on the facts of this case, including to Border Exploration’s entry onto the areas or sites of particular significance.
Having regard to the nature of the areas or sites of particular significance and in circumstances where entry into those areas or sites, other than in accordance with tradition, would amount to interference, I am not satisfied that the operation of the AHA will mitigate the risk of that interference.
Prior exploration in the licence area
In its initial contentions, YNPAC pointed out that, while the State’s material identified that there had been other mining tenements previously granted in the area of the licence, there was no evidence of the extent of any activities undertaken. Further, it argued, citing Western Desert v Teck Australia at [123], that any exploration that had occurred has not affected the significance of the sites and does not mean that further disturbance would not constitute interference.
Taking up this point, Mr Blake’s affidavit attaches mining tenement register searches with respect to the three previously granted tenements. The extent of their overlap with the licence varies but one of the tenements in question overlapped the licence by about 70%, with the next largest overlap being about 20%. Border Exploration argues that, in light of the large proportion of the licence overlapped by historical tenements, it is open to me to conclude that it is highly likely the areas or sites of particular significance in the licence area have been subject to previous disturbance.
In its reply, YNPAC refers to this argument as a “leap in logic” and highlights a number of issues with Border Exploration’s argument, including that the historical tenement with the largest exploration expenditure has the smallest overlap with the licence (less than 2%), as well as there being no evidence of where exploration activities occurred and nothing to support a conclusion that Site 1 and the path of the restricted Tjukurrpa have been previously disturbed. To that I would add that the extent to which the overlap with the previous tenements coincides with the areas or sites of particular significance is not clear and not shown on the mapping.
More to the point though, even if I were satisfied that exploration activities had occurred in the areas of Site 1 and the path of the restricted Tjukurrpa, it does not follow that interference within the meaning of s 237(b) is any less likely in this case, particularly in light of the spiritual nature of those sites. In that respect, my observations in TMPAC v Lake Wells at [98]–[100] are apposite here. Accordingly, I have not given any weight to the history of exploration in the licence area.
I accept from the evidence that any entry into Site 1 and the area of the restricted Tjukurrpa other than in accordance with tradition is interference within the meaning of s 237(b) and, in those circumstances, none of the factors outlined, including the State’s regulatory regime, will sufficiently mitigate the likelihood of interference in this case.
Determination
I determine that the grant of exploration licence E 69/3983 is not an act attracting the expedited procedure.
Ms Nerida Cooley
Member
30 April 2024
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