NSW Highbanking Illegal ..... so what is a Highbanker and Highbanking?

What a great post from Steve Dangaard, re: A National 'GUILD' or call it what you like. It well may be your personal opinion Stephen, but like much of what you say it makes good sense and is well thought out..we are so lucky to have you as our primary spokesperson, president and a good friend.
We all owe you so much for the time you..and others.. but particularly yourself, constantly give of yourself and for your dedicated commitment to our cause.
The end result in the form of Napfa's final submission to the powers that be is a credit to you all and I..and I'm sure so many others have no less than the highest respect for what you do on our behalf. At this stage is it possible for you to inform us of the situation thus far. I understand that you have been in contact with PERE, AND SO MANY OF US ARE LIKE..TURNING BLUE!..and need to take a breath! Kindest regards Rossco.

And just a small note for you Rossco and everyone.
Just have a little bit ,more patience and wait just a bit longer.
Not much more. :Y: :Y:

Ok mate...I was able to pass..just enough wind. .to enable me to gulp a breath of fresh air! ] Looks like a bit of rose colour has returned to my cheeks above my beard line! Cheers mate...Rossco.

Popcorn...

LW...

Scotch

Like many I am a bit aghast at the Compliance determination on highbanking but we do need to look closely at the wording of MINING REGULATION 2016 - REG 12 Fossicking. I am no lawyer but the regulations are not well worded and fail to provide definitive help to avoid confusion.

At the core of the issue is whether the use of water pumps is what distinguishes highbanking from, say, stream sluices. Regulation 12 is quite clear in its wording on one issue and I quote the relevant edited sections.

(2) A person must not carry out work that includes any of the following activities for the purpose of fossicking:

(a) the use of any equipment other than hand-held implements on any land or waters that is subject to native title,

(b) the excavation or clearing of any land or waters that is subject to native title,

(c) the use of power-operated equipment for the purpose of surface disturbance, excavation or processing on any land,

Maximum penalty: 50 penalty units.

If any mechanical or electric powered equipment is used for processing on any land then it is, on a first reading, not allowed. So, if we use a mechanical or electric powered water pump to feed water to a highbanker then it is not allowed. That is what the compliance notice seems to be saying.

However, is it that cut and dried?

You will notice that sections (a) and (b) both refer to any land or waters subject to native title. This is interesting, because the or waters is NOT used in (c). Why not? Whether this is because the full Regulation wording mirrors other native title regulations or is an oversight may be important. It could be argued that the absence of or waters might allow the use of powered equipment ( water pumps) where the equipment is used to only pump water but in waterways but not on land

The NSW laws have various definitions of land but I would defer to the Common Law definition. Look it up. Now, NSW laws do define waters as inland, estuarine and marine and inland waters refer to rivers, streams, underground and wetlands. One implication is that rivers and streams might be regarded as distinct from land but we have to look at whether the use of or waters is just an encompassing phrase to cover all the bases for the native title regulations. It seems to me that, in one sense, that waterways are treated as distinct from land, which is why (a) and (b) cover both land or waters. A lot hangs on the or word.

Its an argument fraught with problems and the best conclusion I have is that we dont want to be caught up on the wrong end of an expensive penalty notice so do err on the side of caution.

A stream sluice may be a pain in the rear end to feed but it avoids the risk of a penalty notice.

Now if you can run water down a long hose under gravity (no dams allowed by the way fishing regulations) to a sluice then there is no powered (water pump) equipment and the problem is also resolved. Been there, done that decades ago. The compliance issue seems to be fixated on the use of powered equipment so we need to fall back on our ingenuity rather than having a hissy fit about petty minded bureaucracy. Just my threepence worth.

NAPFA may have great intentions but until I see them getting good legal advice it is just a talkfest with bureaucrats which is never going to end well.

Hairyman,
yours is an interesting and well argued angle on this matter

For me, the key word is 'processing' where my layman view is that you are still processing until you have found your objective being gold or gems. This is the same as wht you have said.

Not sure about NSW but in Qld they have defined in the QLD Fossicking Act 'fossicking' and it encompasses everything needed (ie processing) to get to "fossicking material" (defined as gold, gems etc in the same ACt)

The part of the NSW regulation that states ( I have underlined the word in question) : "the use of power-operated equipment for the purpose of surface disturbance, excavation or processing on any land'...seems to be clear that 'processing' using a power operated pump is not allowed.

Up here in Qld. hand operated pumps into a rocker or banker are legal.

Arguments about the pump not being part of a highbanker......a highbanker being a static machine (not powered) are all true.

For me these arguments miss the point that the regs say you cant use power operated equipment for 'processing'. I am betting that the authorities regards a high banker as using water/dirt material and hydraulic action of these as part of processing.

This is where I reckon (survey of one) NAPFA need to focus for a change in the regs to allow 'processing using defined equipment' and ensuring a specified banker fits within 'defined equipment'.

Why does 'equipment need to be defined'...to limit someone from using a huge wash plant..even though dig and materials limits should prevent that.

Good discussion and good material for NAPFA to consider.

Some well thought out points there, HM.
I am wondering if whether, in your second sentence, you are?
It's only one letter (or word) but like you say, it can mean a lot. :Y:

Hairyman said:

Like many I am a bit aghast at the Compliance determination on highbanking but we do need to look closely at the wording of MINING REGULATION 2016 - REG 12 Fossicking. I am no lawyer but the regulations are not well worded and fail to provide definitive help to avoid confusion.

At the core of the issue is whether the use of water pumps is what distinguishes highbanking from, say, stream sluices. Regulation 12 is quite clear in its wording on one issue and I quote the relevant edited sections.

(2) A person must not carry out work that includes any of the following activities for the purpose of fossicking:

(a) the use of any equipment other than hand-held implements on any land or waters that is subject to native title,

(b) the excavation or clearing of any land or waters that is subject to native title,

(c) the use of power-operated equipment for the purpose of surface disturbance, excavation or processing on any land,

Maximum penalty: 50 penalty units.

If any mechanical or electric powered equipment is used for processing on any land then it is, on a first reading, not allowed. So, if we use a mechanical or electric powered water pump to feed water to a highbanker then it is not allowed. That is what the compliance notice seems to be saying.

However, is it that cut and dried?

You will notice that sections (a) and (b) both refer to any land or waters subject to native title. This is interesting, because the or waters is NOT used in (c). Why not? Whether this is because the full Regulation wording mirrors other native title regulations or is an oversight may be important. It could be argued that the absence of or waters might allow the use of powered equipment ( water pumps) where the equipment is used to only pump water but in waterways but not on land

The NSW laws have various definitions of land but I would defer to the Common Law definition. Look it up. Now, NSW laws do define waters as inland, estuarine and marine and inland waters refer to rivers, streams, underground and wetlands. One implication is that rivers and streams might be regarded as distinct from land but we have to look at whether the use of or waters is just an encompassing phrase to cover all the bases for the native title regulations. It seems to me that, in one sense, that waterways are treated as distinct from land, which is why (a) and (b) cover both land or waters. A lot hangs on the or word.

Its an argument fraught with problems and the best conclusion I have is that we dont want to be caught up on the wrong end of an expensive penalty notice so do err on the side of caution.

A stream sluice may be a pain in the rear end to feed but it avoids the risk of a penalty notice.

Now if you can run water down a long hose under gravity (no dams allowed by the way fishing regulations) to a sluice then there is no powered (water pump) equipment and the problem is also resolved. Been there, done that decades ago. The compliance issue seems to be fixated on the use of powered equipment so we need to fall back on our ingenuity rather than having a hissy fit about petty minded bureaucracy. Just my threepence worth.

NAPFA may have great intentions but until I see them getting good legal advice it is just a talkfest with bureaucrats which is never going to end well.

Click to expand...

A look at the definitions in the NSW Mining Act 1992 defines land as being also land covered by water. Forget my earlier deliberations.

It does seem that the only way to get around the issue of water extraction for processing is to do it manually by bucket or to use a gravity feed to a highbanker type sluice and/or to stick with stream sluices or panning. Mechanical or electric pumps are not allowed since the bureaucrats changed their mind.

Hairyman
this is a copy of a post from mbasko , might give you some insight on the use of pumps for fossicking etc

It is legal to take water in NSW for legal fossicking:
New South Wales Consolidated Regulations wrote:
http://www.austlii.edu.au/cgi-bin/viewd /sch5.html
WATER MANAGEMENT (GENERAL) REGULATION 2011 - SCHEDULE 5
SCHEDULE 5 Exemptions
(Clauses 18 and 39)
Part 1 - Access licence exemptions
7 Prospecting or fossicking
Any person lawfully engaged in prospecting or fossicking for minerals or petroleum under the Mining Act 1992 or the Petroleum (Onshore) Act 1991 -in relation to:
(a) the taking of water required for such prospecting or fossicking pursuant to a lease, licence, mineral claim or environmental assessment permit under the Mining Act 1992 or a petroleum title under the Petroleum (Onshore) Act 1991 (an "authority" ), up to a maximum of 3 megalitres for all such prospecting or fossicking pursuant to each such authority in any water year, and
(b) the taking of up to 3 megalitres of water required for all other such prospecting or fossicking in any water year.

Struck out the bit that doesn't apply to the hobbyist.

Have a look at the topic covered elsewhere on the forum

This is a very tantalizing piece of law ....but I think you will find that the by-laws under the Mining Act still apply here.Sure, it could be argued that you may take up tp 3 Megalitres of water! but the Mining Act. clearly states that the water cannot be obtained by mechanical means, either fuel=driven or electrical, for the purpose of 'processing'. Every drop of that 3Megs, has to be drawn by hand...or gravity,(read)Siphon. I could be very wrong mind you...but the way I see it, there's no getting around it. It says in the Water Management Regulations..I'm fairly certain, that the Regulations do not preclude the conditions set out in the Mining Act. :/ Please ,..somebody... show me clear and unequivocal evidence to the contrary... 8.( please. ] Rossco.

At this time it does not matter how anyone try to interpenetrate the law it was made so they win they is no way that any of us can bend the law to suite what we want to do
i am not by any means saying that we should stick our heads in the sand and give up what i am saying don't push the point with the law YOU WILL loose
they have it in black and white all you have is grey
let NAPFA sort it out just get behind them and help when they ask
don't make their life any harder then it already is
SO AT THE END OF THE DAY DONT

JMO mind you

iamagoldenoldie2

It would appear that there are caveats in what you quoted - "pursuant to a lease, licence, mineral claim ..under the Mining Act...".

Have one of those and you can extract 3 megalitres of water, as I read it.

I totally agree with you Ken, with respect of your call to support Napfa. However, I don't think the horse has expired all together hehe!..and you know as well as anyone that people are going to have a say about how they see things :/ I know when I first heard of this bloody-minded assault on the ordinary citizen going about the pursuit of a pastime that's both healthy and lawful, which has virtually nil effect on the environment!...well Iwas inclined to say 'stuff yers'..and either dare to go at it anyway and risk being further maligned in the form of a hefty fine. or take a deep breath and think about it more.
The way I see it is that this is not a war about 'highbankers' it's a war about words.In particular that 'SLIMY' one,
'PROCESSING' The one they quietly inserted into the regulations, most likely it was a ploy to stop smallscale..or large scale dredging...but their lack of consideration of the long-term ramifications of their slimy little word is an indication of how shallow their thinking is. I think now it's a case of having some hard nosed Compliance dude on some 'power trip' to immortalise his 'distinguished position'.
Here is one more fact that most commentors have not expressed and that Napfa needs to take on board, for future consideration: The minister for all things mining related..'Has the power to redefine the legislation by the simple act of announcing the change in the Government Gazette'.Subject to certain timeframes the aforesaid changes, become law.So if the nag has succumbed to it's grievous wounds..he must have been at sometime had a spell in the neighbours paddock. And while he was there he most likely jumped the fence or nose nudged a gate because their is a nice looking colt running around their now and the bloodline lives on. ] They say that'the show's not over till the fat lady sings'..As far as I'M concerned she's not getting a bloody ticket to attend.

it was never ment to say NAPFA was a dead horse if it looked that way i am sorry
i ment that we should stop flogging a dead horse by trying to self intemperate the law :8 :8 :8 :8

It's all good Ken.. I was not inferring that you said Napfa was dead...because you did'nt say that, and I agree with what you were saying in that the whole thing is largely out of our control and we really have no alternative but to turn to Napfa for guidance on this. So no amount of talking or jumping up and down is really worth worrying about...that's what I meant when I said... 'I agree with you on your call to support Napfa' it is , as you know alive and cooking I was taken in by your excellent picture of the dead horse! :lol: :lol: and that inspired me to use the analogy of the colt in the paddock!..hehe ] ...the rest of my comments were not in anyway meant as a rebuke to what you were saying mate. I should have made that clear Ken.I have a good piece of respect from what you say Ken..I assumed that was a given from the outset. ] Cheers mate :Y:

all good mate i just thought i wrote it the wrong way around was all :8 :8 :8 :8 :lol: :lol:

:Y: No worries Ken. What you said was short and to the point What I said was long-winded and 'wordy'] I'll have to work on that! :8 Cheers mate :Y:

Hairyman, the copy and paste of the exempt provisions that mbasko posted on the last high banking thread had a strike thru on the parts that don't apply to use hobby fossickers, unfortunately the strike thru does not work for me on copy and paste, have a look at that post for info relating to pumping water , its an exemption buried in other legislation , like everything on fossicking is not under a single easy plain english legislation , is all over the shop but this is the exemption that applies to pumping water from a watercourse

maaatttteeee if you shortened it then we would all thing there was something wrong it would not be the reefer we all know :lol: :lol: :lol: :lol: :lol: