Kelly v Jongedan

[2010] SAWC 4

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

KELLY v JONGEDAN

[2010] SAWC 4

Reasons for Ruling of Senior Warden Dr Cannon

29 September 2010

ENERGY AND RESOURCES - MINERALS - COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS - SOUTH AUSTRALIA

Mining Act 1971, fossicking

KELLY v JONGEDAN
[2010] SAWC 4

1. I note that Mr Jongedan is not present today.  I understand from my staff that he gave a mobile phone number for the last sitting of court.  I have no additional information from him and I did ring the mobile phone number 0432 277 521 but it went straight to message bank.  I now proceed in his absence.

2. I have received a helpful submission from Ms Spikin from the Department of Primary Industries & Resources with which is consistent with my own research. I am dealing with an objection for a Notice of Entry that is regulated by s.58A of the Mining Act 1971 which requires that:

   A mining operator must, at least 21 days before first entering land to carry out mining operations, serve on the owner of the land notice of intention to enter the land.

3. ‘Mining operations’ is defined in the Act as all operations carried out in the course of prospecting, exploring or mining for minerals, et cetera ‘but does not include … fossicking’.  ‘Fossicking’ is defined as meaning:

   The gathering of minerals –

   (a)     as a recreation; and

   (b)     without any intention to sell the minerals or utilise them for a commercial or industrial purpose,

   but does not include the gathering of minerals by any means involving disturbance of land or water by machinery or explosives.

4. The Notice of Entry given here says it is for the purpose of:

   Fossicking – prospecting.  Use of metal detectors/gathering of rock chip samples/use of hand tools only.

5. I note that Mr Jongedan does not disclose a miner’s right to the Notice of Entry although I am told that he does have a current one.  As the situation stands the Notice of Entry is defective for two reasons:

   1.   It does not disclose the miner’s right number.

   2.   It discloses an activity which, on the face of it, constitutes fossicking which is not a mining operation.

6. ‘Prospecting’, on the other hand, is defined in the Act:

   Operations of any kind in the course of exploring for minerals except such as involve the disturbance of land or water by machinery or explosives and ‘to prospect’ has a corresponding meaning.

7. The purpose of prospecting is to ascertain the existence of a potentially commercial resource and, following that, to peg a claim, develop a proposed mining operation, obtain the lease and exploit the resource.

8. The fact that Mr Jongedan is not intending to prospect in the meaning of the Act is confirmed in Item 3 of the Notice of Entry where he says:

   The operations intended are nil.  Fossicking only – area under EL, plus mineral tenements in the vicinity.

9. Accordingly, the Notice of Entry procedure for mining operations has no application.  Mr Jongedan, if he wishes to fossick, must obtain the permission of the landowners under the general law dealing with rights of entry on private land.  The Mining Act 1971 has no operation. The application to prevent entry under the Notice of Entry is upheld and I refuse entry for a mining operation under the present Notice of Entry.

10. I further note that there have been previous notices of entry by Mr Jongedan.  One dealt was dealt with in cause 02/374 and one was dealt with in cause 04/355 and, on each of those occasions, permission was given on terms.  What I am saying in this order is consistent with those previous orders.  The application here makes it clear that it is for a limited purpose of fossicking and I have made it clear the Act has no application to that.  Further, I note that if the purpose were prospecting then one might think that there has been ample opportunity to pursue that purpose under the previous permissions.

11. Whether Mr and Mrs Kelly let Mr Jongedan enter their land for the purpose of fossicking is a matter between the parties that this court has no jurisdiction over.  I note, on the record, that I am advised by Mr and Mrs Kelly that they are not giving permission to Mr Jongedan to enter their land for the purpose of fossicking.