NSW Highbanking - what is the current state of play?

RedDirtDigger said:

I agree with you mbasko that a duly authorised land manager or land owner can stipulate any conditions they wish including not to use pumps.

My general (non legal) understanding of the NSW legislation and regs is that use of pump to reticulate water for the purpose of fossicking (as defined in the mining act) is OK if you return the water back to the watercourse ( obviously not turbid straight into the creek..returned to gravel beside creek). The exemption allowing water to be supplied for fossicking is written in clause 35 of the NSW water management regs and cross referenced in a couple places and cross-referenced to the mining act in relation to the definition of fossicking. And have no doubt when they say "fossicking" they are defining fossicking as it is legally defined in the Mining act...what we do when we sluice/pan/detect recreationally.

I guess the kicker is that if pumping water for the purpose of fossicking is not allowed (as some would say.. because the act/reg is not written plainly), then why did they write in an exemption type clause in the regs for fossicking at all. If we could not reticulate water then fossicking would not be specifically identified in the exemption clause.

All the above legislation assumes that you first must have the authorisation of the land manager/owner to fossick.

I believe the bottom line is that use of highbankers has a long history in NSW and has always been accounted for in the legislation, but recently some public servants have taken the view it is not allowed (because they think it surely could not be allowed in their mind).

I believe NSW fossickers need to strongly take the view that use of pumped water has always been our right under laws/Acts/Regs. and that highbanking has a long history and precedent in this state and that the "views" and the current interpretation of some land management officers is incorrect.

The act needs to be cleaned up and reworded to ensure everyone understands the use of water for fossicking is allowable.

This post is just my views of course.
RDD

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Fully agree RDD. Adding to what you have said, i have seen letters from a past minister of mines?, backing up that in the spirit of the mining act sluices and highbankers were legal for use, i think there may be a copy of one floating round online, will have to check.

Ben78, very interested to hear the 'Nundle Guy' side of thing. Have only ever heard stories on the matter, but one of the stories floating round was he was keeping people out because he had a mate who was dredging and later caught. No idea id it was true or not but that was the only reason we ever heard for him trying to keep people away from nundle.

I can always sympathise with the landowners and I have seen discussion on the Nundle Guy on other forums from people who have had long discussions with him about crown land access and the signage he is alledged to have put up about this. It seems his key argument is around old torrens title giving him rights to half the waterway from his land boundary near bowling alley point to the middle of the waterway.

What he may not be aware of though is it only applies to the original landholder and as soon as the land or any portion of it is sold it all automatically transfers onto the new torrens title which gives the waterway and a few metres on either bank back to the crown.

So if his family has always owned the land for several generations and never sold any of it he may indeed be entitled as he says. If not and he bought the land from someone or sold a portion of it then he isn't. A titles search would quickly settle the matter.

Just use common sense. Don't set up your banker with say 1km from the nearest house.

How would you like your next door neighbour to be mowing his grass for 10 hours a day?

I have never had trouble anywhere including Nundle on the Peel river.

I believe that if highbankers were illegal, they would be specifically mentioned in the regulations.

I reckon leave good enough alone and be smart about your use of a screaming, noisy water pump and trespassing on private property, that is what upsets people most. I think they don't give a shite about shovelling a few buckets of gravel and moving water.

Opinions. Everyone's got one.

Ben78 said:

Dejavu - Look up Larry Eveleigh at Nundle, he does tours up that way and will show you places miles better than the Peel.

As for the other 'issues' at Nundle, I've had numerous discussions at length with 'Nundle Guy'. I'm not going to give my opinion but I understand and sympathise with his position.

Head up the hill, any direction from Tamworth (Uralla or Hanging Rock) and you'll have a better time of it. More gold and the weather is cooler too!

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Thanks Ben78! Whereabouts in Uralla and Hanging Rock? I've only got a river sluice.

Well today was the day that we all never want to happen. Two fishing inspectors on the bank of the Peel River at Nundle letting me know that pump driven Hibankers are illegal. Can of worms yes but i really would like to talk with someone who can give me a definitive answer on what the legalities are. i got a photocopied brochure off the men in grey with reference made to the mining act, specifically not mechanical processing.
The thing that annoys me is that one branch of government doesn't talk to the next and i end up with two fishing inspectors reading me the mining act
As they always seem to be able to do, they are enjoying it up here and i don't get to do what i would very much like to be doing.
i wasn't digging into a bank, exhausting into a river or any such thing. I pay my taxes and live in a manner which is law abiding as far as humanly possible.
Their side of the argument revolved around "mechanical means" a point which i had to concede.
At this point, opinions aren't really what i am after, fishing inspectors don't do opinion. i'm after facts, Stu.
P.s, WalBankers are awesome.

Like all these regulations they are subject to interpretation, there is no finite answer unfortunately. If you read the guide

https://firewood.sf.nsw.gov.au/A-Guide-to-Fossicking-in-New-South-Wales.PDF

it would seem evident that the "mechanical means" they refer to specifically deals with "surface excavation" however it is not worded the same way in the mining legislation it refers to.
Also in NSW (I have not seen this in other "rules") they do give the fisheries officers power regarding "habitat" you may disturb.

As I said before, unfortunately it is like all laws.....it depends who is interpreting them, and in many cases different bits contradict each other

and I must say this is only my opinion, I am not a lawyer or legislator, I just happen to have been recently reading these statutes seeing how they differ state to state

Stu said:

At this point, opinions aren't really what i am after, fishing inspectors don't do opinion, i'm after facts,

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Hire a solicitor then. They will charge you for their opinion.
Or read this opinion:
https://www.prospectingaustralia.com/forum/viewtopic.php?pid=146189

The fact is there are no clear facts. The legislation is very grey & open to interpretation on both sides. Obviously the Fisheries up there are taking a "no pump" stance to suit their purposes or someone's that is or has made complaints to them & most likely pointed out the "mechanical" sentence convincing them that it is a mechanical means of processing. More than likely they would have no understanding of how a highbanker works & they are completely blinded by the running pump
The pump doesn't "drive" your highbanker it delivers water allowable under water legislation. The highbanker is static. Nothing is driven.
All you will get is opinion because as far as I can tell it's never been tested for fact or penalised as law.

You could contact the DPI & ask for clarification?
[email protected]
You could also ask why Fisheries Officers are policing recreational fossicking on the Peel River where they gave no indication of fish habitat issues & their only concern was with Mining legislation?

G'day Stu,

I posted some discussion (please see below) regarding this perennial matter of the use of Highbankers etc just yesterday. As a few others have already observed of your experience, it appears at face value that the Recreational Fisheries Trusts of NSW DPI are taking an interest in pumping water from a waterway to run a sluice from the point of view of Fisheries and using or ''cherry picking'' the Mining Act and Regs to suit their purposes.

With all due respect to the well meaning Inspectors, who would have been advised by their supervisor/line manager, they are out of their depth and not in a strong position. As I have discussed below, if you feel you have a genuine complaint or issue, follow it up with the relevant authority.

Mbasko has suggested that you could consult a lawyer and that is a matter for you to decide, depending upon the strength of your conviction regarding the pursuit of your fossicking. Retaining a lawyer will obviously cost you and what your lawyer will be doing is writing letters to DPI after doing his/her own research on the legislation in question. Letters, the initial ones at least, are something you can write yourself. Outline what happened and how you think the Fisheries have misinterpreted the Mining Act and Reg's. You may also raise the contradiction between advice from Fisheries and previous advice from Rangers/NPWS/Police if you have been so advised.

Further than that at this time, I can't offer or suggest any more help. You have encountered one of those times when it needs to be redressed after the fact. I do feel your frustration though, most people, as is very evident here in these pages, are disempowered when dealing with officials, even when they, the official in question, gets it wrong!

Given that I spend a lot of time at Nundle and Hill End/Sofala areas using my sluice in the Peel, Turon and other tributary re-entrants, I am going to look into this further. I am in a position to stand my ground and argue with authority upon the application of legislation with any ranger or fisheries inspector who has very limited instruction in the law but, I am very cognisant of the plight of the membership of this fraternity when faced with such a circumstance.

Stand by, I will advise of the outcomes.

Regards,

Peacekeeper1966.

Hello Folks,

Whilst being new to this site and forum, I have been fossicking since I was a lad at school and have been interpreting and applying statute, common law and precedent legislation in Australian, Asian & Pacific jurisdictions for the past 20 years.

I have perused the discussions and felt the frustrations and, observed much wailing and gnashing of teeth in relation to interpretations of and, what in practical terms equates to 'powered-operated' equipment or 'equipment powered by mechanical or electrical means' within the meaning of the Mining Reg's 2010 (NSW).

Mbasko (2015) & Marked (2015) et al, offer pretty good guidance regarding the use of petrol and/or electrical pumps to deliver water to a sluice, highbanker or other gold saving devices that then rely upon gravity and/or hand operated agitation that allows the water to wash and separate materials from gold within your chosen device.

In short, using a petrol, diesel, steam etc...or electrically powered/driven water pump to deliver water alone to your device, does not contravene either the Mining Act 1992 (NSW) No 29, Part 2, Division 1, Section 12 or, the Mining Regulation 2010 (NSW), Part 2, Prospecting and Mining Generally, 12.

When interpreting legislation, what is paramount and must always be born in mind is what is known as the 'spirit of the law' or 'spirit of the legislation'. Any literal interpretation of each word of the law without due consideration of the 'spirit of the law' will generally lead to misunderstanding or misinterpretation or, misuse/abuse of the legislation as per Dezman's earlier experience as referenced in this forum thread (7 Sept 2013).

So, back to this 'spirit of the law' as opposed to the erroneous literal interpretation of just the words of the law. Essentially, this idiomatic antithesis means that if you obey the 'letter of the law', but not the 'spirit of the law', you are not obeying the intent of the legislators, those people the electorate empower to write and enact laws for the greater good and protection of the community. And, this does not include stopping people from pursing legitimate hobbies and pass times that have minimal or managed impact on our environment. It is acknowledged (Hill End is a prime example) that fossicking and associated tourism are important contributors to local economies and employment opportunities in historic towns and culturally significant areas.

When we look at what the intention of the legislators was when enacting the Mining Act and Reg's (NSW) and, make reference to water management and other enabling Reg's and legislation, it is seen that the intention was to stop the inland rivers, waterways and general environment and natural habitats being indiscriminately torn to pieces by people with dredge pumps and other powered apparatus. Anyone, if you are really so compelled, may read the Hansard of State Parliament (NSW) and high level ecological research 'white papers' that helped informed the legislature of the need for environmental conservation including the better management and regulation of the use of powered dredges in waterways & wetlands in this state.

I will use my small 4-stroke water pump to feed water to my sluice when there is inadequate water flow or volume in a creek or river. And, I will take care to minimise the impact of noise, tailings and run-off where I'm using it. In the very unlikely event that an official tells me otherwise, I will ask for an explanation and discuss it. Remember, if diplomacy fails (again very unlikely), any official who writes an Infringement Notice effectively commences a prosecution where they have to prove all elements of the alleged offence. But lets be sensible here, if you are polite and decent and respectful, you will enjoy the support and good grace of rangers and others when in the field.

And, general advice on offer here from other contributors regarding etiquette and communication with public officials such as rangers or police officers is sage advice. If you genuinely believe that an official is wrong discuss it with him/her and talk about it with them, ask them to explain it to you. A big part of a rangers role is educating the public on rules and reg's so as to protect the environment etc. And, just because you are spoken to, there is no call for putting a face on and becoming abusive, these folks generally are friendly and helpful and like outdoors stuff too. You wont help yourself if you fail 'the attitude test' but, if you have a genuine complaint that you cant resolve at the time, take it up with National Parks/the relevant Council/Police/or appropriate authority. They all have systems to address legitimate complaints and discussions and feedback from the community.

Hopefully my discussion will provide a better understanding and a disambiguation of how the Reg's read to the average punter and have you better placed and informed when talking with self appointed protectors of the environment or bar-room lawyers.

Regards,

Last edited by Peacekeeper1966 (Yesterday 11:47 pm)

Thanks gents for your support by way of swift and thorough response.
I get that our interpretation of the law is that surface disturbance should be by pick and shovel and that the pump delivers water to the hi banker (miners act) which is a static system (gravity fed).
Out of respect for my digging brothers who live in parts of our state not patrolled by agenda filled variants of the "law", i don't want to make a disturbance which could have state wide ramification. However, i had two sons and a daughter with me yesterday, all over the age of 18 and none of which smoke or drink excessively and who have a love of the outdoors. We live by codes and we were doing the right thing as far as we could tell. The wash was good and of a pink, red and blue nature, my daughter in particular loving every minute of the hunt. My sons are keen and strong. Peacekeeper1966, I understand the spirit of the law. I work with DOTARs and the Civil Aviation Act every working day. It is a minefield until you get to one important fact - Intent is the major driver. It is also the major consideration in a court of law. I was set up on a rock bar/spit with no exhaust plume, 300m from a public road out of view. Before the officers, i had i think three sets of guys who were interested in fossicking take a look at my setup. I even gave them some 101 on what to look for in a system. My intentions were law abiding and my persona was easy.
For me, i guess reading the white papers would be the next step but i've seen the impact of a dredge on a river and i would prosecute the offender as well.
I would very much like the DPI's opinion on the delivery of water to the hibanker and i will be contacting them and asking for clarification (a definitive answer) relating to exactly these points that we are discussing. Peacekeeper1966, you are obviously in my local area and i'm also in a position to stand my ground if the law so allows me to.
Warmest regards, Stu.

To be fair it is widely signposted at Nundle that pumps are not welcome...

According to the Nundle fossicking information map those signs are only at Swamp Creek & the Old Chimney fossicking areas. All other crown land should be ok?

Oh absolutely and conceded. Easy to get caught up in the pump doing what loop tho.
So, for the time being, without a hibanker, ?panning? with a particular was in mind, has anyone got a method of speed reducing wash other than Hibankers which cannot be questioned? According to the inspectors, a stream sluice that we bucket to would be ok (ie not in the stream).

And along comes a flood and does more than a fossicker can do in a 100 years .

Hi Mate,
I covered this a while ago in a post.
High banking is legal as long as you follow the rules. The rules are written in such a way that if you are doing some thing wrong in a defiant, glaring and un-respectfull manner, You will have a brick dropped on you.
Where as if you are doing the right thing, you will probably have a few rangers who are curious and stop and have a yarn or a cuppa and give you a few pointers as half of them are keen prospectors themselves.
I rang the State authority for State Forest's about the matter and found the person very helpful and courteous.
.
If it is posted that High banking or sluices are not to be used, Don't do it.
The banker is a static device and utilizes gravity assisted water to classify material. And loaded by hand. (A shovel is not a machine nor is a bucket)
I will also state that if you use a bucket to load your banker, That is very favorably looked on.
.
The pump is covered under the Water Act and is only transferring water from point A to B.
.
The definition of using hydraulically and mechanically assisted machinery that causes surface disturbance covers any type of machine to assist you on moving material like using a back hoe or dredge.
All you are allowed to use is your muscle and manual dexterity.
.
Place your banker back from the water way as far as you can and prevent an excessive amount of muddy water from silting up the waterway. Build a small catchment wall to slow the water letting most of the sediment settle. Grab a bit of old carpet or the water stop material that road builders use to entrap sediment. You will not stop all of it but make a good effort to stop as much as possible.
.
Digging out banks and silting the waterway in a way that is glaring out as being negligent will cause a very fast reaction from a Ranger
.
I interprated the signs above in saying that it is these area's in block that you are not to use pumps.
.
If you are doing the right thing and you are threatened by a person who is being unreasonable or is suffering a bad attitude, Grab a camera and start recording. (You are allowed to do that by law) also film the "Evidence" for follow-up. It is funny how attitudes change with that one. )
.

Stu said:

Thanks gents for your support by way of swift and thorough response.
I get that our interpretation of the law is that surface disturbance should be by pick and shovel and that the pump delivers water to the hi banker (miners act) which is a static system (gravity fed).
Out of respect for my digging brothers who live in parts of our state not patrolled by agenda filled variants of the "law", i don't want to make a disturbance which could have state wide ramification. However, i had two sons and a daughter with me yesterday, all over the age of 18 and none of which smoke or drink excessively and who have a love of the outdoors. We live by codes and we were doing the right thing as far as we could tell. The wash was good and of a pink, red and blue nature, my daughter in particular loving every minute of the hunt. My sons are keen and strong. Peacekeeper1966, I understand the spirit of the law. I work with DOTARs and the Civil Aviation Act every working day. It is a minefield until you get to one important fact - Intent is the major driver. It is also the major consideration in a court of law. I was set up on a rock bar/spit with no exhaust plume, 300m from a public road out of view. Before the officers, i had i think three sets of guys who were interested in fossicking take a look at my setup. I even gave them some 101 on what to look for in a system. My intentions were law abiding and my persona was easy.
For me, i guess reading the white papers would be the next step but i've seen the impact of a dredge on a river and i would prosecute the offender as well.
I would very much like the DPI's opinion on the delivery of water to the hibanker and i will be contacting them and asking for clarification (a definitive answer) relating to exactly these points that we are discussing. Peacekeeper1966, you are obviously in my local area and i'm also in a position to stand my ground if the law so allows me to.
Warmest regards, Stu.

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Thats right GaryO!
We got 140mls the other day/night and it was minor flash flooding 8foot? Only lasted 12hrs but it did alot of damage..moved tonnes of rock/dirt way more than i have in 10months or possibly in my life time?
Qld is a very grey area almost blue rinse regarding water pumps/bankers.. :/ ????? I use a pick n shovel to collect my material and a water fed sluicebox to clean my material in and i pan down my finds...if any?
I dont find enough gold to warrant the use of one but it makes it fun its my hobby its getting my fat lazy crippled tattooed body out of bed giving me some quality of life. I have and will always abide by the law and respect the people employed to enforce it. If i have made a mistake so be it punish away but if i havent then bring a spare leg for that chair cause im about to talk it off

Haha, great reaponses and i feel better already. In particular Tathradj. yobskin, these guys had their feet up on my bull bar eyeing me - the only thing i could do was talk. It never fails. I think that the whole system has been a bit bruised by guys doing the wrong thing. The river itself bares the scars of dredging in some parts. Doing the right thing will eventually be the key to allthis. I just need to find my happy place with it all.

so,in nsw......if you used a recirculating sluice,and only processed the 25kg of material in a day you should be right ?

Hi all, sorry to ask a question that has been most likely been asked before but I met a guy at Nundle while I was there the other day who said that the legislation in N.S.W. had just been changed.

He said that it was now legal to use a small pump with a high banker in N.S.W. and that it was only the size of the pump that was regulated.

Does anyone know if this is correct I cant find any updated information on it, maybe I'm just looking in the wrong spots.

Thanks for any information and help on this matter.

PM Tathradj for lots of information

To the best of my knowledge nothing has come through yet. When it does you will find it on the Government Gazettes under the Mining section of the weekly one:
http://www.legislation.nsw.gov.au/#/notifications
I've been keeping an eye on them for about a year now to see if any newly gazetted fossicking districts come through. Still waiting on a couple.
One thing to keep in mind is even if/when the grey area of pumps is rectified in legislation that the land managers or landholder's will still have a final say. If for instance the local council managed a particular spot they could still set a condition of access that no pumps are allowed much like what is seen in a couple of areas at Nundle now. If people push the boundaries on it they could remove access altogether. A green light may not mean a green light everywhere but it will give the vast majority much greater piece of mind.