NSW Dept of PERE campaign against highbankers, they are now illegal in NSW

[Jimnyjerry]

" WARNING TO FOSSICKERS ABOUT NSW SLUICING DEVELOPMENTS
The NSW Department of Planning, Environment, Resources and Energy (PERE) (new department that incorporates the old Resources and Energy group) has decided to commence an enforcement campaign from September to November 2017 particularly targeting ‘highbanking’ equipment as per below:
Illegal fossicking Recreational fossickers utilising a device known as a ‘highbanker’ to enhance their fossicking capabilities to search for scheduled minerals has been identified as an emerging issue. The use of a highbanker, which is a petrol or electric powered device, in fossicking, is prohibited by the Mining Regulation 2016. These products are being commercially produced by multiple manufacturers to meet market demand. This unlawful activity results in a number of environmental issues. A compliance campaign with be carried out focusing on suppliers and end users of the equipment.
The full compliance document can be found here:
http://www.resourcesandenergy.nsw.gov.au/__data/assets/pdf_file/0020/731117/Compliancepriorites-July-December-2017.pdf "

Copied from https://cwpsupplies.com.au/blogs/whats-happening-around-us/napfa-highbanking-update

More on their page

[Gemster]

Yes... they ARE now Illegal to Use and Fines Now Apply.. NAPFA have been working very hard and closely with this department for quite sometime on this Matter. Now this Department has ignored ALL NAPFA's Submissions and have made THIS Decision... NAPFA is also working with NPWS on their new Policy for National Parks, this includes Torrington , Which is one of OUR Favourite Fossicking areas.. Join NAPFA now and help them in this Fight to protect our Hobbies.... NAPFA were Responsible for ALL of the New Fossicking Districts in NSW that we now enjoy.. .. So it's in our OWN Interests to Support them... Only Costs $25 per Year..... That's equal to 5 Cups of Coffee to some....

 NAPFA stands for NSW and ACT Prospectors and Fossickers Association....

  Gemster.....

[Orange Pirate]

The full compliance document can be found here:
http://www.resourcesandenergy.nsw.gov.au/__data/assets/pdf_file/0020/731117/Compliancepriorites-July-December-2017.pdf "

Anyone know where this moved to?


CheersOP

[Gemster]

G-day OP, More than likely it is been modified or moved... The Departments are undergoing some Changes at the moment and I would try in a few days time.. Do you want the Full Revision on this?
 Here is the one I think you are after...click on link and Download...
https://www.prospectingaustralia.com.au/forum/viewtopic.php?id=23040

  Gemster.....

[Gemster]

Here is some info and History of NAPFA's hard Work....

In 2010, without effective consultation with the stakeholders most affected, the Mining Regulation 2010 amendments added the word “processing” to Clause 12(2)(c) which states “A person must not … carry out the following activities for the purpose of fossicking: … (c) the use of power-operated equipment for the purpose of surface disturbance, excavation or processing on any land, …

The Regulation change was never advertised or enforced regarding current sluicing or high banking activities, or for other small scale powered recreational equipment affected. This led fossickers to believe it referred to mechanically driven equipment such as crushers, vibratory screens, portable processing plants and the machinery to feed them.

Fossickers, and many others, including regulatory officers, considered pumps simply delivering water to small hand fed equipment not to be ‘power-operated processing’, especially as fossicking has legislated water rights and the only action is the transfer of water to a sluice.

NAPFA has worked with the PERE to justify the use of highbankers and mitigate environmental concerns, especially to prevent water pumps being used for dredging operations, and to impose size limits on equipment so as not to be seen to be “semi-industrious”.

Despite requests by NAPFA for reasons why the 2010 change was made, we have not received a satisfactory response. The PERE has since supported this literal interpretation of “power-operated equipment” applying to highbankers that NAPFA consider is unjustified and unfairly restricts all other powered recreational equipment.

NAPFA has worked with the PERE to justify the use of highbankers and mitigate environmental concerns, especially to prevent water pumps being used for dredging operations, and to impose size limits on equipment so as not to be seen to be “semi-industrious”.

Unfortunately, despite NAPFA solving concerns satisfactorily with the PERE, which are included in our final report submitted in May 2017, we have not had a reply, or formal acknowledgement of the report.

Now, out of the blue, the PERE have decided to commence an enforcement campaign from September to November 2017 particularly targeting highbanking equipment.

NAPFA was not consulted nor informed about this impending action, which has been set despite the fact that we have been having ongoing communication to reach a suitable compromise on the matter.

The prohibitive interpretation based on the 2010 Regulations also restricts all other power operated equipment including 12v and solar operated gold wheels, small concentrators and other recreational equipment used for fossicking.

In doing so the PERE has unduly restricted the use of pumps and other very small, almost no impact equipment, and rendered ‘inoperative’ equipment owned by recreational fossickers that would be worth millions of dollars.

We have expressed our total disappointment about the way the matter has been handled by the department to date. The lack of communication, consultation, and progress have simply been appalling.

We have been told that the compliance section operates completely independently, however given the timeframes, meetings, work and outcomes to date, this action is not acceptable to the Prospectors and Fossickers of NSW.

The compliance priorities notice, NAPFA’s 2015 & 2017 reports, and a copy of this notice to members can be found at: www.napfa.net under the section “Sluicing – Highbanking”

Previous interpretation allowing the use of pumps and other small-scale powered recreational equipment not being used for excavation, that has been accepted in the field by various government authorities, shire councils, prospectors, fossickers, and the general public will no longer be allowed. Any breach of the PERE interpretation can be enforced. This includes all power operated equipment.

NAPFA ask that members take the time to read the objects and purposes at the beginning of the PERE compliance priorities notice.

Please read NAPFA’s 2017 sluicing report in its entirety, as this report details the history of dealings with the PERE on the issues, and direct all queries to NAPFA (President@napfa.net).

We will stay in touch as we progress this urgent matter.

[Orange Pirate]

Thanks Gemster for taking the time for such a comprehensive response. That certainly answered the majority of my questions, I think.
Am I correct in reading it's the use of a powered pump to move the water to the higher banker, not the high banker it's self? The interpretation of that, the moving of water, was IMO always open to question.


I'd love to read the legal definitions list.


Cheers
OP

[Jimnyjerry]

Full document is found here http://www.resourcesandenergy.nsw.gov.au/…/Compliance-prior…

[Gemster]

Pumps have always been a Grey area... Fossicking act said No.. Water act said yes... Now it's a NO.... ... I think the word Highbanker scares the Hell out of the Clowns that that made these rules... Thing that I laugh about is that they think Fossickers use Highbankers...

  Gemster......

 

[Orange Pirate]

I was hoping there would be some actual papers available that has the legislation and definitions. To understand how they are classifying a highbanker and how they have separated the water act and the fossicking act (that loop hole always made me chuckle - A law makers 'Doh!' moment) and what determines powered equipment esp hydraulic.


Cheers
OP

[Gemster]

It's still early days yet... Here is some more reading for you...


16 October 2016 07:48 am

Recently there has been a staged repeal of the NSW Mining Regulation 2010. Staged repeal is a process that helps government ensure that regulations are up to date & modern.
As a result of this process the Mining Regulation 2010 has been repealed and remade as the Mining Regulation 2016. The only change to affect us is to clause 12(1) to link the offence regarding disturbance of soil, rock or other material to the actions of a “person”, in line with the existing obligation on a person in clause 12(2) regarding fossicking activities. There were no change to the requirements of the clause.




Clause 12 under the Draft Mining Regulation 2016 provides:
‘(1) A person who causes any soil, rock or other material to be disturbed in the course of work carried out for the purpose of fossicking for minerals must ensure that:
(a) the soil, rock or other material is removed and stockpiled separately, and (b) after completion of the work, the soil, rock or other material is replaced in order to reconstruct the original soil profile.’
The current clause 12 under the Mining Regulation 2010 provides:
‘(1) Any soil, rock or other material that is disturbed in the course of work carried out for the purpose of fossicking for minerals must:
(a) be removed and stockpiled separately, and
(b) after completion of the work, be replaced in order to reconstruct the original soil profile.’

As a whole the changes were insignificant to us as fossickers/prospectors but has highlighted that the Greens are not the only group that has an interest in seeing recreational fossicking/prospecting made more difficult or over regulated in NSW.


NSW Minerals Council  wrote:



The proposed amendments to clause 12 are not material but fossicking districts have recently been expanded yet fossicking is largely unregulated. Fossicking is similar to low impact exploration yet there is no requirement for fossickers to obtain written agreement with the landholder, demonstrate their identity or technical competence, pay for the privilege to the Government, provide a security deposit in case of poor rehabilitation nor require additional approvals for surface disturbing activities. The remake of the regulation is an opportunity for clearer regulation for fossicking. As in previous correspondence and submissions, this could include licences for fossickers (similar to the current NSW fishing or firearm licences) to at least provide proof of identity. Such licences are required in other Australian jurisdictions including Western Australia and Queensland.
http://www.resourcesandenergy.nsw.gov.a … ged-repeal

In response NSW Resources has noted the NSWMC concerns but said it was a new policy proposal beyond the scope of the Staged Repeal process.
I'm not sure where this will head or if indeed any new policy proposal will be looked at or acted on but it does highlight that we need to be mindful of what we are doing when out & about. We don't need to be giving these seemingly anti recreational groups any ammunition.
There were also no changes to any wording around the use of highbankers or moreso any clarification as to what is classed as "power operated" equipment for fossicking.
I know NAPFA have been working on this but it seems to either not been adapted or also deemed to be beyond the scope of the Staged Repeal process?



Everything we use comes from mining or farming.


  Gemster........

[Jimnyjerry]

I was hoping there would be some actual papers available that has the legislation and definitions. To understand how they are classifying a highbanker and how they have separated the water act and the fossicking act (that loop hole always made me chuckle - A law makers 'Doh!' moment) and what determines powered equipment esp hydraulic.


Cheers
OP

I think they would say no to anything that has a hose attached to it if the water is moved by a pump powered by a petrol motor or a battery. Whether it be called a highbanker, wallybanker  or sluice.

Suppose you might get away with pouring buckets of water in a highbanker as that would be as a sluice that needs more water.

Wonder if solar water showers would freak them.

[Shivan]

Jimmyjerry you are spot on.

As far as I am aware the only thing in question with a highbanker (as it has been for the last 7 years) is the petrol pump supplying water and definition of what "processing" is.

When i called the DPI when i first got started prospecting, they were of the opinion that when you connect a hose from the pump to the highbanker it magically becomes one unit and "processing" using mechanical means (petrol pump) was illegal.
But even they had to concede that the only thing the the pump was processing was water and if you did not connect the hose (run via hose fed reservoir or hose straight into the hopper) then it was still in fact legal.

I personally feel until there is a change of wording or highbankers are specifically named as illegal to use, they will have a hard time making charges stick.

[Crocket]

This is the part that relates to powered equipment etc.

Mining Regulation 2016
Clause 12

(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,
(d)  the use of explosives on any land,
(e)  the damage or removal of any bushrock,
(f)  the removal of more than the prescribed amount of material from any land during any single period of 48 hours,
(g)  the disturbance of more than 1 cubic metre of any soil, rock or other material during any single period of 48 hours.

Maximum penalty: 50 penalty units.

I personally feel until there is a change of wording or highbankers are specifically named as illegal to use, they will have a hard time making charges stick.

I am not sure that I completely agree with you Shivan.  It would rest on the Magistrate's interpretation of "processing on any land".  Just my opinion, but I think many Magistrates would consider washing of the soil to be processing.  From what I see it's not the highbanker itself... it is using the powered pump to facilitate the process (as JJ said, you could pour buckets of water but not use a powered pump). I understand your argument Shivan but I am not going to test it to find out.

I wonder how they would see filling buckets with a pump?  I suspect Compliance Officers would see that also as "use of power-operated equipment for the purpose of..."  It certainly does need to be clearer.

 

[Orange Pirate]

Not  sure what they are trying to achieve by changing clause 12. I understand why they have done it. But will it change anything? I think not
Has anybody ever been done for not filling their hole and how many have actually 'stock piled' the different materials.

We don't need to be giving these seemingly anti recreational groups any ammunition.

That is very true.

I think they would say no to anything that has a [size=0px]hose attached[/size] to it if the water is moved by a pump [size=0px]powered[/size] by a petrol motor or a battery

I think that is too easy to work around. TBH I 'think' I could work around that, for a price and be out tomorrow and I could not be touched..... If  I owned a highbanker.Think hand cranked pumps although a poor example.


It all depends on the definitions.
power-operated equipment:
petrol motor or a battery - Is easy to work around.


But if they rely on dictionary definitions, which they can do. The Oxford dictionary gives this example


Electrically or mechanically operated. - I can't work around that so easily.


I believe they may change the application of the water act
At the moment IMO there is too much conjecture regarding this legislation


Cheers
OP

[Gemster]

I agree with you Mr Crocket... Sometimes the Law is not very clear and it is left up to a Judge to determine weather any law and under what law to Prosecute.... My pockets are not very deep so I might just stick to my shovel and Sieves for now....

  Gemster.......