Who owns the minerals in Tasmania?

This post is a follow-up to my original June post on Fossicking vs. Prospecting, in light of new information from Mineral Resources Tasmania (MRT).


A little while ago I wrote to the Director of Mines asking some questions about ownership of minerals in Tasmania. The Director of Mines is the person charged with administering the Mineral Resources Development Act of 1995 (MRDA). This is the Act that governs all mining, exploration, prospecting and fossicking in Tasmania. The act gives power to Mineral Resources Tasmania to enforce mining law, and makes the Director of Mines the main person responsible for all mining matters, after the Minister.

My specific question was about ownership of minerals in Tasmania. The advice MRT has been providing to prospectors is that prospecting is the same as fossicking, but outside of designated fossicking areas. They have also been advising that prospecting is exclusively a hobby occupation, and you cannot sell anything you find while prospecting. I think this advice is wrong, and unsupported by the law, and this post explains why.

The question:

If you have the time to read the definitions of prospecting and fossicking in Section 3 of the Act, which I covered in my original post, you’ll quickly notice that the law says fossicking is not allowed to be for commercial gain. In contrast, prospecting is not subject to such restrictions. Previous advice received from MRT contradicts this.

By way of comparison, all mainland mining acts have some sentence that gives a person who is fossicking or prospecting unquestionable ownership of what they find. For example, if you go to the appropriate sections of the mining acts of Victoria and New South Wales, they say clearly that minerals you pick up while fossicking and prospecting in those States become your property. This occurs by virtue of your licence or Miners Right. Opposite to the situation on the mainland, Tasmania’s MRDA does not have any explicit paragraph giving prospectors ownership of the minerals they find.

So I asked the Director of Mines to clarify the following: Do minerals collected in Tasmania under a prospecting licence belong to that prospector or not? After all, I’ve been coughing up my hard-earned cash to pay for a prospecting licence for nearly 20 years on the understanding that they do.

The answer:

The Director of Mines has replied to my letter by saying:

A prospecting licence does not grant any right to a mineral, as an exploration licence or mining lease does, and the holder of a prospecting licence does not have ownership over a mineral found whilst prospecting.

So what is a prospecting licence for, then?

The Director’s answer leaves me feeling a bit dumbfounded. I have paid for a prospecting licence for uncounted years on the understanding that this was the way by which I got to own what I found. I have been told outright by MRT officers that this was so, and the law and rules in every other State specifically say prospectors own what they find. MRT have been saying that prospecting is fossicking (but outside of designated fossicking areas), and the conditions of fossicking areas state:

Any material capable of being removed by hand becomes the property of the fossicker

What exactly have I been paying for, when I was sold my prospecting licence year after year? I feel like I’ve been defrauded by MRT.

This statement from the Director of Mines, who is supposed to be the ultimate authority on mining matters, is factually wrong, and I will expand how below.

Ownership of minerals in the MRDA 1995

I briefly covered how the Act is ambiguous by not making it clear who owns what, in my original post. The only statement the MRDA makes on the ownership of minerals is Section 6, which says that all minerals in the ground are owned by the Crown (with some exceptions). The crucial thing here is that the Act is silent not just on whether prospectors own what they find, but on the matter of who owns ALL minerals dug up in Tasmania, under any kind of licence, or mining lease. Following the line of logic of the Director of Mines, all lessees and licensees selling minerals in Tasmania are selling something they do not own.

This in itself hasn’t been massively problematic. The Act sets out, in Part 4, Section 102, for the payment of royalties, by which mineral sales occur. For most minerals the royalties are payable on profit, not the quantity or value of the minerals dug up. This includes all the minerals that prospectors would dig up, such as gold, gemstones, and lapidary materials.

Warning, things start to get convoluted!

It’s important to establish what the Act actually says. The key phrases in Part 4, Section 102 are:

a lessee must pay royalty at a prescribed rate in respect of a mineral sold under a lease


a licensee must pay royalty at a prescribed rate in respect of a mineral sold under a licence other than a geothermal production licence

By looking at the definitions provided, in this part of the Act (Part 4), “licensee” means:

(d) in any other Part, the holder of any licence in force under this Act

So in the MRDA, the rules setting out the process of payment of royalties to enable mineral sales are the same for mining leases, and ALL licenses, including prospecting licences.

There are some caveats under the law: holders of exploration licences and retention licences have to get permission from the Director of Mines to sell minerals.

Section 23.4 (authority of exploration licences):

(4) A person must not sell any mineral recovered during exploration without the approval of the Director.

Section 58.4 (authority of retention licences):

(4) A person must not sell any mineral recovered whilst carrying out authorised activities without the approval of the Director.

However, these restrictions don’t apply to mining leases or prospecting licences.

To summarise, neither lessees (mines) nor licensees (prospecting, exploration, retention, production) own any minerals they dig up. The process by which sales are enabled (royalties) are exactly the same for all of them, but restrictions apply to exploration and retention licences. Following the Director’s logic, if the sale of prospected minerals is illegal under the MRDA, so is the sale of all minerals produced in Tasmanian mines, since the law is the same for leases as for prospecting licences.

This is of course ridiculous, and so the Director’s letter stating that sales of prospected materials are not permitted under the Act is a fallacy. But why say something plainly wrong to prospectors? We’re not sheep, and most of us are capable of reading and understanding the Act. Is it just ignorance of prospecting and prospectors?

As prospectors, we’re a drop in the ocean compared to the revenue generated by mining activity. Because we generate no revenue we’re seen as unimportant. This also probably explains why regulators seem unfamiliar with the laws they’re charged to enforce when it comes to prospectors. They spend very little time dealing with prospecting-related matters. MRT probably see us as an annoyance (or at least they probably see ME as one by now!), and a waste of their time. However, there are hundreds, if not thousands of people in Tasmania who like to fossick, noodle, prospect, or otherwise collect pretty rocks. We are, BY LAW, part of MRT’s stakeholders, and our rights are set out under that law. The law does not give MRT the power to use definitions for fossicking and prospecting that are at odds with those set out directly in the Act itself.

The fact is that prospectors rarely, if ever, turn a profit such that they’d need to pay royalties. Once you take into account travel, accommodation, supplies, depreciation of gear, and the cost of your own time (salary), you’d be very lucky to break even on a trip. We do it because we love it.

MRT do not collect royalties from prospectors because they choose not to. The paperwork would be a nightmare and a waste of their meagre resources, for no appreciable return. The fact that they choose not to chase prospectors for royalties does not, in my opinion, forbid the sale of prospected material, contrary to what the Director’s letter says. However royalties would be payable if you turned a profit.

I’d be personally quite happy with that. If I stubbed my toe on the next “Welcome Stranger“, I’d probably eventually want to sell it, and would be happy to pay any royalties due!

Why bother with all this?

As I went over in my original post, there are some fairly stiff penalties if we do the wrong thing, so you’ll want to be careful to stay within the law. Fines up to $77,000 and confiscation of all your gear (including the car you used to get there) are available penalties.

Unfortunately the current situation is that MRT are telling prospectors and fossickers that certain things are illegal, when even a basic reading of the MRDA shows it isn’t so.

In my opinion, we need the Mineral Resources Development Act of 1995 updated. It needs to make clear that miners and prospectors own the material that they dig up. If MRT decide that it would be worth their while to collect royalties from prospectors, then the mechanism to do so already exists under the current law.

And with this, I’ll get off my mighty high horse!

As always, please keep in mind that this post is just my own personal opinion. Although I’ve spent a lot of time poring over the MRDA, I am not a lawyer, and I don’t pretend to be handing out legal advice. The MRDA is actually not that long, particularly the bits relevant to us, so there’s no substitute for reading it yourself and making up your mind.

Have you come across problems like this before? Are there particular types of posts that you find more interesting? If you like the content at Apple Isle Prospector, feel free to get in contact, or leave a comment.

9 Comments Who owns the minerals in Tasmania?

  1. Phillip Kemp


    i just noticed, the acting director of mines is wrong in their statement and their understanding of Exploration code of practice. And what exploration can and cant do. Or have they changed that to suit too.

    Blame the director of mines for everything? great idea..

    To say they are the same or enjoy the same is wrong.

    Our old licence was way more informative than todays. Thats not my fault or anyone elses. its MRTS and ultimately the Director of mines.

    1. TasProspector

      Hi Phil,
      If you mean the statement by the Director that exploration licences grants a right to minerals, then you’re right, certainly they don’t, they only grant the exclusive right to explore. They are in fact more restrictive than prospecting licences. They explicitly say that the holder must not sell minerals without obtaining permission of the Director of Mines, which is not the case in prospecting licences. Unfortunately this advice came directly from the Director of Mines, and it’s worrying that even a person at that level could make such a plainly wrong statement.
      Even saying that a mining lease grants rights to a mineral in a way that a prospecting licence doesn’t is fraught, in my opinion: the mechanism for the sale of minerals and collection of royalties applies equally to prospecting licence holders and mining lease holders, or at least that’s how the law is worded.
      The Prospectors and Miners Association of Tasmania has just become Incorporated, and will be pursuing this and other discriminations against fossickers and prospectors.

  2. Karl

    Thanks Miguel for your investigation of the law as it applies to ‘prospecting’ in Tas.
    I’m interested in both prospecting and the law. It’s incredible that all minerals in Tasmania went from ‘no ownership’ or even ‘Aboriginal ownership’ to ‘ownership by the Crown’. Just look at what they had to do to achieve that outcome? Strictly following the letter of the law prospectors should not remove a found item to begin with. That seems to contradict the word ‘prospecting’. Yet mining companies regularly walk away from multi-million dollar remediation works after operations have ceased. Why? Because its legal for a company to go bankrupt after the minerals have been mined. It’s well known that mining ‘bonds’ in Australia to cover clean-up only pay for a tiny fraction of the costs involved. In other words the revenue from mining and royalties are not the true costs of mining. The residual costs are picked-up by ordinary taxpayers. Maybe the state needs to charge prospectors a token ‘royalty’ on the sale of found objects? At least that way people would feel comfortable they were acting within the law.

    1. TasProspector

      Hi Karl,
      I agree, and your argument is the same reason why I think it is unfair and discriminatory for prospectors to be excluded from significant parts of the State where mining is allowed. The excuse given is that prospecting is unregulated whereas mining is carried out under strict environmental conditions. Therefore prospectors could cause too much damage. I think this is a ridiculous argument: All the prospectors in the State together would be unlikely to have even a fraction of the impact than a large commercial mine leaves behind, even after remediation. It’s not like mine remediation returns the site to pristine wilderness, is it?

      1. Karl

        In my area Beaconsfield Gold closed the mine and went bankrupt without remediating 2 large and toxic tailings dams.
        The site is easy to see on google maps to the west of the town. This happens all over the world of course.
        I guess the government is interested in encouraging corporate mining for economic reasons and accepts prospecting as part of that process.
        I understand MRT has some problems of its own with the gov trying to move them to Burnie.

        1. TasProspector

          Compared to large-scale mining, prospectors only contribute tourism dollars, but these are outside the scope of what Mineral Resources Tasmania do. This results in them considering that prospecting brings little or nothing to the State, which I disagree with.
          I don’t think anyone has reliable stats on how many tourists carry out fossicking or prospecting in the State, but it wouldn’t be a small number.

  3. Karl

    I’ve discovered I may not be able to use a metal detector on my own property legally because my property is covered by a mining lease. A caretaker for the mining company told me they don’t allow prospecting on their lease. The lease is not being worked and the company did not respond to calls, so I asked the guy looking after their disused mill. I’ve also asked MRT for advice on this issue and will let you know what I find.

    1. TasProspector

      Hi Karl,
      I can see that that’s going to be a complicated issue, as it depends on many things. For example what sort of compensation agreemend you had with the mining company for the use of your land. If they snuk a clause in there saying you may not enter the lease, then there’s little you can do.
      Some stuff that may help, from the Mineral Resources Development Act:
      Section 80.3 says: “The Minister may vary the conditions of the lease by rescinding, adding, substituting or amending a condition”. This means you can apply for the conditions of the lease to be varied to grant you access in your own land. Dunno how successful you might be, though.
      Section 99.1c says: “The Minister may revoke a lease or part of a lease if satisfied that mining has not taken place for 12 months”. You can pursue this in your dealings with MRT.
      Section 112.4 says: “A holder of a mineral tenement who refuses to give consent for the holder of a licence to prospect on land which is subject to the mineral tenement must give that person written reasons for the refusal”. They cannot refuse you without giving you a reason why. Usually mining leases are tricky to get access to, as they can weasel out using all sorts of health & safety concerns.
      Finally, mineral tenements don’t give any right to historical artefacts. As such they can’t stop you from using a metal detector in the property, provided you have the right to access and use that land under lease in the first place. If you happen to find a gold nugget while looking for coins and artefacts, well…

      1. Karl

        Thanks Tasprospector. No wonder they didn’t want to reply to me at all if a refusal has to be in writing. I suspect its actually a 99.1c situation.
        I may see you at Zeehan at the gem fair weekend.

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