A.K.A. pointless prospecting rule of the week.
This is one that has had me stumped for a while. Condition number 18 of the “Conditions Relating to Prospecting Licences” says:
This condition has been discussed at PMAT meetings, and I am aware that PMAT has sent correspondence to the Director of Mines specifically addressing this issue. However, it still remains in the official rules of prospecting licences as of September 2017.
This rule is firstly so ambiguous as to defy interpretation: No fires are to be lit by whom? The prospector? Their family? When? Where? Can you have a campfire to cook your meal in the evening after you’ve been prospecting? Can your family or friends, who are not prospecting, light a campfire while you prospect next to them? Can you have a wood-fired barbecue going? Some of these questions seem silly, but the way the regulation is worded, the answer would be ‘no’.
I’m going to go so far as to dob myself in: during a recent prospecting trip to Mathinna, we lit a fire at the designated fireplace in the showgrounds.
Exceeding the Director’s authority?
The main sticking issue is that I am not convinced that the Director of Mines has the power to issue conditions that are unrelated to prospecting. The Mineral Resources Development Act 1995 (MRDA) gives the Director of Mines power to issue regulations about prospecting. Specifically from Part 5, Section 110 says:
(1) The Director may grant an application for a licence subject to any condition the Director considers appropriate.
This is one of those broad, sweeping legalistic generalisations that would appear, in the face of it, to give the Director power to enforce any condition at all he or she deems appropriate. Later on, in Section 114, the MRDA also gives the Director the power to withdraw a prospecting licence:
The Director may revoke a licence if the licensee fails to comply with, or contravenes –
(a) any provision of this Act; or
(b) any condition of the licence.
In summary: If a fire is lit while you prospect, you may lose your licence.
But let’s examine Section 110 it more closely. Does the vague wording of the Section grant the Director of Mines the power to issue a Prospecting Licence with a condition that is not actually related to prospecting or to minerals or mining at all?
Let’s leave aside whether the Director would ever consider this appropriate, and contemplate a scenario: Does the Director have the power to grant a prospecting licence with the condition that holders must tattoo their licence number on their arm? Or paint their house red? Or drive only in an authentic 1960s VW Beetle? And would the Director have the power to revoke your licence if you drove a Nissan Patrol, painted your house green, or declined to have your registration number tattooed on your arm?
I think the answer to that last question is that, if the Director tried this, his decision would be easy to challenge. Those conditions have nothing to do with prospecting and the Director would be exceeding the authority granted him by the Act.
I think the only way to read condition 18 in Prospecting Licences is that you are not permitted to use fire to prospect, such as clearing vegetation. My opinion is that the condition needs to be reworded to reflect this, and should have nothing to say about what else you do when you’re out that is not directly related to your prospecting activity.
Keep in mind that I don’t have any legal training and this is strictly my opinion. I think whether you can have a campfire depends on the rules for the particular piece of land you’re camping in (and current fire rules such as fire bans), and not affected by what it says on your prospecting licence. However, be aware that a strict reading of the ‘Conditions Relating to Prospecting Licences’ means that lighting a cigarette while prospecting will allow the Director of Mines to revoke your licence.
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