The Director of Mines v Wendy Alice Clarke - [2009] SAWC 5

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
THE DIRECTOR OF MINES v WENDY ALICE CLARKE
[2009] SAWC 5
Reasons of Warden Sprod
20 November 2008
MINING LAW
PRESCIOUS STONES CLAIM
Breach of labour using claim as a residence, Mining operations.

THE DIRECTOR OF MINES v WENDY ALICE CLARKE
[2009] SAWC 5

This Plaint relates to Precious Stones Claim registered number 76953 situated at German Gully Diggings at Andamooka. The Plaint before the court relates to an alleged non‑compliance with working conditions. This claim is outside the major working area and either the claim holder or somebody on her behalf must pursuant to the regulations, work the claim not less than 20 hours per week. There is an additional concern with the Department with respect to this claim, namely that it gives the appearance that the claim is inhabited and there is a reasonable risk that other members of the community may take that view.
Compliance Officer Powell attended at the claim on 7th October. He saw no evidence of recent work and he made observations consistent with the claim being set up for habitation and he took a series of photographs. Those photographs are now exhibit P1. The photographs of course speak for themselves but show a number of items of furniture and other personal effects and chattels, they also show the area is carpeted.
A further inspection of this claim was carried out by Compliance Officer Kelly on 23rd October 08. He also observed no sign of any mining activity and he observed what he described as definite signs of habitation. He took further photographs on that day 23rd October and they are marked exhibit P2. As a consequence of those observations the Department forwarded to the claim holder a letter now marked P3 to which the claim holder responded by her own letter dated 22nd October now P4.
I heard evidence from Ms Clarke who told me that it was necessary for her to travel to Whyalla for a period of time which was about the same time as the second inspection and that she had been absent for some time earlier than that. She told me that she was mining the claim, she described two holes that she dug and showed the court photographs taken on her mobile phone which have been described in evidence.
She says that she has a hammer drill and a generator. She says that she was also in possession of various other drills and she has a noodling machine, apparently to be placed on the claim at some future date. When asked about work of a mining nature that she had done, she described the erection of a structure across the front of the drive in the cut, that is depicted as what appears to be a corrugated iron wall with a door. This she says is for security purposes that she does not want any of her mining equipment stolen from the claim. However she acknowledged at one point in evidence she was taking the equipment to and from the claim in her car and the nature of her mining equipment clearly is such that it could be easily transported and does not need to be stored on the claim. She maintains that she is mining the claim in accordance with her obligations under the regulations. I have considerable doubt about that I must say.
With respect to the various items shown in the photographs that give the impression of habitation she says that they are there for the purposes of resting. She is not in good health, tires easily and takes long rest breaks. She says that she is also capable of producing other documentation that would support the fact that she is mining the claim and not residing there. She says in fact she is residing in accommodation opposite the hotel in Andamooka that is being paid for by her partner.
I make some general observations for the assistance of the Warden who might hear further evidence with respect to this matter. The Opal Mining Act of 1995 and the Regulations thereunder proscribe a code by which opal mining in this State can be lawfully undertaken. S7 of the Act provides the means by which a person can obtain a Precious Stones prospecting permit. "Special Stones" are defined in S3 of the Act to be opal and other minerals declared by regulation to be precious stones. S10 (1) authorises the holder of a precious stones prospecting permit to prospect for precious stones and to peg out an area for a precious stones tenement. Subsection 2 limits the authority conferred by subsection 1 as proscribed by the Act. "Prospecting" is defined in section 3.
The actual pegging process is controlled by S12, 13 and 14. S15 (1) of the Act confers upon the holder of a precious stones claim permit who lawfully pegs a claim within a precious stones field;
(a) an exclusive right to conduct mining operations, for the recovery of precious stones and to sell, use, or dispose of precious stones recovered in the course of those operations; and
(b) an exclusive right to apply for registration of the claim within 14 days.
To this point the legislation effectively provides for two preliminary steps to be undertaken before the benefits conferred by S15 occur: ‑
1) a person must acquire a precious stones prospecting permit;
2) that person must lawfully peg a claim and it is only then that an exclusive right to conduct mining operations arises.
The benefit conferred is however limited to the conduct of mining operations on that claim and the disposal or otherwise of precious stones recovered.
"Mining operations" are defined in S3.
"Means operations carried out in the course of prospecting or mining for precious stones, or rehabilitation operations but does not include fossicking".
The Act confers no other rights or benefits. For example there would be no right
‑to erect a structure not reasonably used for the conduct of mining operations
‑to keep or store equipment or chattels, not reasonably used for the conduct of mining operations
‑to carry out any other use or activity of or associated with the claim that is not reasonably necessary to conduct mining operations
‑to permit any person to use or carry out an activity that is not reasonably necessary for the conduct of mining operations.
This list is by way of example and not exhaustive.
In my view, any use of or activity of this kind is not an authorised use or activity of the claim.
My view in this regard is strengthened by consideration of the regulations that require a claim holder to carry out mining operations for not less than 20 hours a week or risk forfeiture of the claim, see regulation 14(2). The following will be taken to be within the concept of diligently working the claim -
(a) the performance of mining operations on the claim
(b)work associated with the extraction of or making merchantable, precious stones located on the claim where that work is carried out on the claim
(c) the preparation, erection or maintenance of machinery or equipment used in connection with mining operations where that work is carried out on the claim.
In my view, what was intended by Parliament, especially in the case of a proscribed precious stones claim field was to make available land that could be appropriately controlled for mining of precious stones.
If Parliament intended that land be for another use, then Parliament would have said so.
Any other use in my view contravenes the provisions of the Act.
Pursuant to S72 "The Wardens court has jurisdiction to determine, in the manner it thinks just, all suits concerning a right claimed in, under, or in relation to a tenement, or a purported tenement, or a precious stones prospecting permit or otherwise arising under this Act."
S75 allows the court to order forfeiture of a tenement if a requirement of the Act has not be complied with in a material respect and the matter is of sufficient gravity to justify the cancellation of the tenement.
In my view these provisions should be widely interpreted to give effect to Parliament's intentions.
In my view, for example, to take up residence on a claim is an unauthorised use of the claim and is not reasonably necessary to conduct mining operations. Of itself it is not a mining operation.
The Act confers no rights of occupancy and to have claim holders living on their claims as their place of residence to the exclusion of others or otherwise, in my view results in the claim being liable for forfeiture.
Having said that, I have explained carefully to Ms Clarke that there are a number of options. She either conducts mining operations in accordance with the regulations and works the claim personally or somebody else works her claim on her behalf, for at least 20 hours per week or she will lose the claim. In addition, if she wishes to keep the claim, she must clean up the appearance of the claim that gives rise or might give rise to a conclusion the claim is being inhabited. It is perfectly acceptable to have some minor items of furniture, for the purpose of rest, but it is not acceptable to store goods on the property nor is it acceptable to live on the property or give the appearance that somebody might be.
I have explained to her if she wants to keep her claim she must remove the structure erected, namely the doorway to the drive and wall and remove all of the property not reasonably necessary for rest after mining. Claims are for mining, they are not for resting or any other purpose.
She has asked me to adjourn further consideration of this Plaint. I have agreed to that on the basis that she can have the opportunity to make good the claim which will be inspected I imagine on a number of occasions between now and the next circuit. It is also made clear to her if these requirements are not met it is almost certain the Warden who hears this application will make an order of forfeiture of her claim and she will lose it.
Adjourned further consideration to 28th May 2009 at 11 am in Andamooka.