The Director of Mines v Hubertus Claasen

[2009] SAWC 10

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

THE DIRECTOR OF MINES v HUBERTUS CLAASEN

[2009] SAWC 10

Reasons for Decision of Senior Warden Cannon

1 June 2006

MINING LAW

PSPC:  Work done away from the claim is not counted for labour conditions.

THE DIRECTOR OF MINES v HUBERTUS CLAASEN
[2009] SAWC 10

1. I accept that Mr Cerny is in partnership with Mr Claassen.  They have a claim in a difficult area it is difficult because of a band of hard rock and also wet clay resulting in unstable side walls and ceilings. 

2. The material they have been recovering to the uninitiated eye doesn't look like opal but he has convinced me that by the application of processes than other than adding acid to the material, colour can be revealed in the stone.  He has brought samples to demonstrate that is the case.  I will return that to him at the end of the hearing. 

3. The process is reasonably labour intensive and apparently that activity occurs off the claim.  He had interpreted Regulation 14 (2)(b) to permit work done off the claim preparing the opal to be counted as labour conditions.  I have explained that is not the correct interpretation of that regulation.  Simply, the labour requirement is 20 hours a week on the claim.  The activity done on the claim is interpreted broadly so that if a miner is out there doing something useful then we are not too fussy about what something useful encompasses. 

4. The purpose of the regulation, Their policy is to make sure that people who hold the claim are genuinely trying to exploit the resource in the claim.  The converse is that people who hold down a claim and don't do anything can be removed so that land is available to others. 

5. By way of completeness I add that Mr Claassen's claim is in an area that is difficult and there is a great deal of vacant land in this area so that them holding this claim is not an impediment to other miners pegging in that vicinity. 

6. There is no doubt there has been a breach in the work regulations, a material breach.  However, for the reasons above I find it is a failure not of sufficient gravity to warrant forfeiture and I order the plaint is dismissed so that Mr Claassen keeps his claim. 

7. However, now that Mr Claassen through his agent and partner Mr Cerny are unambiguously aware of the labour obligation they cannot run away from it as Ms Trenham has pointed out. 

8. If he thinks that the regulations need to be re‑drafted then he can apply through the Department and the political processes to try and get the regulations changed. I offer no view on whether that is or is not a good idea.  My job is not to make policy.  My job so to apply the regulations as an independent person, but sensibly and sympathetically, so they achieve their objective of ensuring people who want to mine can find some land to mine on, and that people who are generally trying to mine as I assess Mr Claassen and Mr Cerny have been by an unusual method don't suffer unfairly. 

9. No forfeiture order.