The State of Fossicking in Queensland in 2007

INTRODUCTION
There was great fury around the State and more dust was created over the legislation than there was in all the mines in Queensland…Although I do not have it in writing, I might say also that I suspect that the legislation was aimed deliberately at the elimination of the small mining industry in this State. That is unfortunate. It appears to be a fact of history, and it is one about which I am not particularly proud. In this State, we used to have literally hundreds of small miners involved in mining alluvial deposits of various types, such as tin and gold. Of course, a number of them were involved in small hard-rock shows, particularly in my area. There were also literally thousands of prospectors, or people who were interested in prospecting. Professionals and amateurs had a document called a miner's right and they used to go out on weekends. Those people were, in fact, the first line of entry of the mining industry into a province or a piece of country that had not been looked at before. They were the people who had the little picks. They were the ones who took the samples. They were the ones who looked for the anomalies on the surface of the land. They were the eyes and the ears of the future of the mining industry in this State. I think that it was a matter of very grave concern that the National Party Government—and at a later time when the legislation was looked at further by the incoming Government, it did not resolve the issue—moved quite deliberately to take those people off the landscape. It seems that, at that time, it was so much easier for the department to deal with a very small number of very large miners than to worry about the inconsequential few little miners who went out there and did all the hard work. I do not think that that has served the mining industry and it certainly has not served Queensland well because it has taken many of those eyes out of the bush landscape. By God, there is some pretty rough landscape out there. Those people spent a lot of time out there. They gave their lives to it. They are the ones for whom we can be thankful for the discovery of much of the important mineral resources of this State. In fact, they discovered the vast majority of the mineral wealth of this State, and we should not have overlooked them. It is a pity that the department was able to convince the Minister at that time that we should get rid of those miners, and I believe that we need to go back.[1]

The current perception is that successive Queensland governments have not and will not look after fossickers because these people cost too much to administer, generate too little revenue in return and are not “green” enough. Such perceptions are reinforced by the Review of Queensland Mining Discussion Paper 2007, which seems more preoccupied with:

the globalisation of business[2]
Industry’s influence is global.[3]
Australia’s share of global mineral exploration continues to decline.[4]
The global business nature of mining,[5]
Interest from global operators,[6] and
However, the mining industry has become more global in the past 15 years and Queensland has to compete internationally for the exploration dollar.[7]

As a whole the Review of Queensland Mining Discussion Paper appears to afford superficial consideration to fossickers, prospectors and small miners and their rights and interests. What follows is an attempt to define for the Queensland Government the issues of concern from a Queensland fossicker’s perspective in the hope that these issues may be genuinely acknowledged, addressed and resolved.

ISSUES

Issue 1 - Lack of fossicking areas
In 1995 the Queensland Government was put on notice that “far more fossicking areas were needed and should be established”[8] When the Fossicking Act came into force, one of its objectives was to “assist in tourist promotion activities of regional authorities, particularly in rural and outback areas, by improving access to well known fossicking localities.” [9] In Far North Queensland twelve years after the introduction of the Fossicking Act the government has not delivered “by improving access to well known fossicking localities.” In reality a fossicker’s access to state land has been cut back and is in the process of being further restricted. Such a patent lack of positive action fuels the perception that the Queensland Government is concealing a deliberate agenda “to take those people off the landscape” and maintains the fury.

The Palmer Goldfield Resources Reserve is a classic example. The Palmer Goldfield is the largest alluvial gold field in the state. Despite this, in 1986 the area with the highest concentration of alluvial gold in this state was declared a protected area. Fossickers (metal detector operators) were shut out. In spite of this, that same area remains open to mining with tenements being granted as late May 2007.[10]
The reason that mining is permitted in this area is:

It is believed that the alluvial areas of the Reserve still contain gold at sufficient grades to allow economic mining by modern methods at current gold prices;

The major gold bearing reefs of the reserve may justify re-examination to determine whether they can also be reworked;

Queensland Government policy is to encourage and facilitate miners and prospectors in their search for, and production of, gold and other minerals for the benefit of the economy of Queensland.[11]

It appears that initially, the trustees[12] for this area intended to permit fossicking. This is evidenced by the statement:

The use of metal detectors will need to be prohibited in any fossicking activities so as to reduce the opportunities for illegal collection of artefacts.[13]

Despite this fossicking is not permitted in this area. Information in relation to this reserve on the Environmental Protection Agency’s website states:

Treasure hunting has finished. Prospecting, panning and metal detectors are not allowed.[14]

Presumably the respective trustees felt that it would be too difficult to administer fossicking in this area and decided on a complete ban. After all, to permit some form of fossicking (gold panning), whilst prohibiting others (metal detecting) could be discriminatory and in the absence of facilitative legislation, might leave the trustees open to legal action. The reason that mining is permitted in this area and fossicking is not is that the Queensland Government wishes to prevent the illegal collection of artefacts[15] and pilfering by fossickers.[16] The “Mines Department” reasoning is as mining applications go through a cultural heritage clearance process and fossickers do not, mining can continue in the area, whilst fossicking may not. This reasoning ignores the fact that despite cultural clearances, miners may still pilfer relics. This reasoning ignores the fact that under fossicking legislation this area is already adequately protected. Fossickers are prevented from interfering with items of cultural or heritage value.[17]

This reasoning ignores the fact that under heritage legislation this area is already adequately protected. Fossickers are prevented from interfering, removing, or possessing protected objects.[18] This reasoning ignores the fact that under aboriginal cultural heritage legislation this area is already adequately protected. Fossickers have a duty of care to ensure that their activities do not interfere with aboriginal cultural heritage or they face substantial fines.[19] Now I concede that not all fossickers abide by legislation or do the right thing. But I assert that for the most part, the majority of fossickers do.

So despite the Palmer Goldfield Resources Reserve being more than adequately protected by at least three layers of legislative protection, it is still off limits to fossickers because fossickers might pilfer relics. I’ll now draw an analogy to illustrate how this line of policy making crumbles under scrutiny. There are laws in place in throughout Queensland to prevent drink driving and speeding. Yet every year hundreds of people break these laws and people are either killed or are seriously injured despite these laws. In spite of this phenomenon the Queensland Government has not banned driving. If the rationale used to ban fossickers from the Palmer were applied to driving, driving would be banned in this state. The majority would be penalised for the minority. This analogy is not an oversimplification nor does it compare “apples and oranges”. The fundamental point is that the Queensland government’s policy decision to keep fossickers out of the Palmer crumbles under scrutiny. In summary, the policy decision to keep fossickers out of the Palmer is patently wrong. It is wrong for the following reasons.

1. The policy discriminates against fossickers (mining is permitted),
2. The policy ignores legislation currently in place designed to protect the Palmer,
3. The policy ignores the way that law is applied in practice (don’t penalise the majority because of the illegal acts of the minority) and
4. The policy goes against the objectives of the Fossicking Act to improve “access to well known fossicking localities.”
   

These factors combined fuels the perception of a deliberate agenda to “to take those people off the landscape” and it maintains the fury. The Palmer River is not an isolated example of fossickers being removed from the landscape. The Palmer River is not an isolated example of how the Government has failed to deliver by improving “access to well known fossicking localities.” [20] Far North Queensland has eight historic gold mining districts – Cairns, Cooktown, Herberton, Innisfail, Mareeba, Mossman, Thursday Island and Weipa. These “well known fossicking localities” contain at least 43 goldfields.[21] A great many of these goldfields are highly mineralised and as such produce a number of gemstones including sapphires, garnet, topaz, zircon, amethyst and smokey quartz.

The Russell gold field, specifically Jordan Creek was also a “well known fossicking locality” for many gem groups and tourists due to the variety of gemstone occurrences there. The vast majority of these fields are on public land, the overlying tenure for the most part being pastoral leases, occupational licences, state forests and reserves. None of the occupiers of public land on the Palmer, the Hodgkinson, the Mareeba, Ebagoola or the Normanby will consent to gold detecting on their pastoral leases. Many of the state forests are now inaccessible to fossickers, as they have been converted to protected areas.

In December 2003 as part of the South East Queensland Forests Agreement the Queensland government endorsed the decision to transfer 480,000ha of State Forests to protected areas within the Wet Tropics.[22] Dinden, Danbulla, Goldsborough Valley, Emerald Creek and Palmerston State Forests were all included in this decision, which encompassed both the Mulgrave and the Russell gold and gem fields. The situation gets worst for fossickers with information on the Environmental Protection Agency’s website trumpeting:

“The Queensland Government is preparing to dedicate approximately 880,000ha of new protected areas in Queensland resulting from the forest transfers occurring in the Wet Tropics and under the South East Queensland Forests Agreement (SEQFA).”[23]

Issue 2 – Lack of Government support for fossickers
As it stands in 2007 there are no declared, designated or general permission fossicking areas on any of the gold and gem fields mentioned above. This is despite these areas being public land. This is despite warnings and appeals to the Queensland Government since at least 1995 that more fossicking lands are needed and should be set aside. In February 2006 the Queensland Lapidary and Allied Craft Club Association Inc. petitioned State Parliament and urgently requested:

that the Queensland State Government ensure that there is no adverse impact on fossicking under Government plans to reclassify a large number of State forests in South East Queensland. The areas are huge. Over 460,000 hectares of land in Queensland will be affected. In an attempt to create greater protection, the Government wishes to reclassify many of the State Forests as “protected areas” under the Nature Conservation Act, 1992. Fossicking with a regulatory licence is currently allowed in State Forests. However, there are no plans to allow fossicking to continue in the newly established “protected areas”.[24]

The response from the Minister for Environment at the time, Desley Boyle confirmed that “no defined fossicking areas have been identified within the proposed lands for transfer as part of the South East Queensland Forests Agreement program or those recently transferred to protected areas as part of the Wet Tropics forest transfer.”[25] The response did not address the issue of fossicking in protected areas. As it stands the Minister did not have to address the issue of fossicking in protected areas. As the Fossicking Act does not apply to protected areas,[26] fossicking is not permitted in these areas. This was confirmed in April 2007 when Lindy Nelson-Carr, Minister for Environment and Multiculturalism responded to a petition in relation to fossicking in state forests near Clermont stating:

The Fossicking Act 1994 does not allow fossicking on a protected area other than a resource reserve.[27]

This is despite a valiant effort on behalf of the National Party Member for Charters Towers, Mr Knuth who in February 2007 argued:

This decision to lock up forests and deny access will have a significant impact on fossickers and the economy of towns that rely on fossickers who travel from all over the country to grasp hold of a pick, pan and detector to have a go…In other states, prospectors have good access to state controlled land and are able to pursue this hobby. The lock-up of millions of hectares of Queensland state forests will seriously impact on communities such as Clermont, which actively promote the activities as tourist attractions and benefit from the many fossickers who travel to pursue their hobby. [28]

I received a letter from a fossicker who travels to Clermont each winter and is dismayed that in this day and age where obesity is such an issue enjoyable outdoor activities such as fossicking are not available to ordinary people because of the possibility of state forests being locked up. These communities relish the opportunity to showcase their towns. They do not have the multimillion-dollar cinema complexes, massive shopping centres or giant sports stadiums but they have their history, and they offer opportunities for visitors to partake in activities that allow access to bushland with the added advantage of possibly finding some gold. [29]

Tourism is the major source of income in many rural and regional towns. Instead of hindering a community’s ability to offer something unique, this government should be encouraging the initiatives these communities show to attract visitors and therefore boost the economy. I would ask the minister to look clearly at the names of the signatories. Every state in this country is represented on this petition. [30]

There are even signatories on the petition from New Zealand. This sends a clear message that, firstly, Clermont has done a great job in selling the prospecting angle to the tourist market and, secondly, that locking up the state forests—state forests that belong to Queenslanders—is destroying the viability of an industry that encourages and enthuses participants from the local community, Queensland, Australia and all over the world. [31]

With fossicking, it is all about going to a creek bed, grabbing a little pick, picking at all the cracks and crevices and dirt, finding some gold, using a metal detector, using a pot and pan and polishing a nugget when you do find one. This is very important for these people. They need access to do this stuff. So on behalf of the Clermont community, the tourists and the fossickers, we call on the minister to make provisions to enable them the access to fossick in local state forests.[32]

Mr Knuth is conspicuous in Queensland Parliament as a solitary advocate for fossickers. In 2006 whilst addressing Parliament in relation to the Mineral Resources and Other Legislation Amendment Bill the National Party Member for Charters Towers, stated:

I also have grave concerns about the fossickers who are unable to access some areas. It is very difficult for them to access areas to fossick for gold. That is their hobby. They have been kicked out of the state forests. I believe that we need to look after the interests of the fossickers, who will spend their time and energy searching for a few gold coins and a few nuggets.[33]

It seems that most MP’s with well known fossicking localities in their electorate aren’t aware of the fury of fossickers. There appears to be no further Queensland Parliamentary discussion about fossickers let alone positive discussion from any other Queensland MP. Due to the Queensland Government’s attitude towards fossickers, fossickers have lost 480,000ha of fossicking areas in Far North Queensland alone. Because of SEQFA fossickers stand to lose more.

The point is worth repeating. In 2007 there are no declared, designated or general permission fossicking areas on any of the gold and gem fields discussed above. Furthermore there are no declared, designated or general permission areas for gold or gems anywhere in Far North Queensland.[34] This is despite the objectives of the Fossicking Act to improve "access to well known fossicking localities” and the Queensland Government being warned that more areas need to be established and set aside. In summary the Queensland Government has:

1. Ignored fossicker’s concerns when drafting the current fossicking legislation,
2. Failed in their duty of care to improve access to well know fossicking areas,
3. Actively closed access to well know fossicking areas and
4. Ignored calls and petitions from fossickers and fossicker’s groups to remedy the situation.
   

On the balance of probability this evidence supports the proposition that the Queensland Government has a deliberate agenda “to take those people off the landscape”.


Issue 3 – Public land elevated to the status of private land
It is important to examine the legislative history in relation to fossicking and small mining in order to fully appreciate how recent Queensland Governments have legislated to remove people’s rights. The miner’s right was once the instrument that enabled fossicking. Under the Mining Act 1898 (Qld) a miner’s right allowed the holder “To take possession of, mine and occupy Crown land for mining purposes”[35] amongst other things. Under the later 1968 Act[36] a miner’s right issued under the allowed the holder to “take possession of and occupy Crown land for mining purposes”[37] amongst other things.

Crown Land
Under the 1898 Act “Crown Lands” meant all land not dedicated to any public purpose or granted as fee simple or contracted to be granted as fee simple.[38] In 1898 “Crown Lands” included pastoral leases, occupational licences, all timber reserves, camping reserves and reserves for aboriginals.[39] “Crown Lands” did not include agricultural farms, homesteads and “Unconditional Selections”.[40] Under the latter1968 Act “Crown land” meant, “Land other than land granted, accrued, accruing or being purchased in fee simple and reserves.[41] “Crown land” also meant pastoral leases and associated permits and licences. It is important to note the change from the old act to the new. Unlike the 1898 definition, the 1968 definition “Crown land” included “land dedicated to any public purpose.” As such the 1968 Act opened access to “public purpose” land, which included amongst other things:

1) national parks,
2) quarries, ballast grounds and gravel pits,
3) reserves for Aborigines or Torres Strait Islanders,
4) rest areas,
5) stock routes,
6) state forests,
7) stock holding paddocks and
8) watercourses.[42]

In summary from 1898 to 1989[43] - a period of 91 years, fossickers, prospectors and small miners had the ability to access a wide variety of Crown lands. It is important to note that the previous Mining Acts enabled fossickers and small miners to take possession and occupation of specified Crown lands whether they were occupied or not. In other words, fossickers, prospectors and small miners could access occupied Crown land without the need for consent from the occupier.

This reflected the following long established principles that:

1. Crown land is not “private land” it is “public land”. It is owned by the State of Queensland for the benefit of the State (i.e. the community of Queensland).
2. Occupiers (pastoralists, leaseholders, lessees, license and permit holders) of Crown land do not actually own the land they occupy. Occupiers are mere tenants. The only thing they “own” are certain rights relating to the use of the land in exchange for the payment of rent and the fulfilment of certain duties and
3. The Crown’s reservations of (rights to) minerals.[44]
   

Pastoral leases
At this point it is appropriate to examine a form of Crown land generically referred to as “pastoral leases.” This type of Crown land includes:

1) preferential pastoral holdings,
2) pastoral holdings,
3) pastoral development holdings,
4) stud holdings,
5) special leases for pastoral purposes
6) term leases for pastoral purposes
7) occupational licences,
8) permits to occupy,
9) stock grazing permits

“Pastoral leases” deserve special attention for three reasons. Firstly under the old regime, a fossicker with a miner’s right could prospect these areas without consent. Secondly, these leases are a form of occupied Crown land. As such and under the new regime, fossickers require consent to legally fossick on them. Thirdly the native title case, Wik[45] established that these leases are non-exclusive tenure. The judgement in Wik[46] explored the legal creation and evolution of pastoral leases and explained that when pastoral leases were originally created, Parliament never intended them for the exclusive or sole use and enjoyment of the leaseholder. In other words it is now settled law that these leases do not confer to the lessee the right of exclusive occupation to the exclusion of all others. In other words it was never Parliament’s intention that these leases should be treated as “private land”. It was on that basis that Wik[47] established that native title rights exist in relation to “pastoral leases”. “Pastoral leases” are Crown land, categorised as non-exclusive tenure, owned by the taxpayers of Queensland, for the benefit of the taxpayers of Queensland. Like it or not, that is the law.

When the Queensland Government did away with the miner’s right and introduced the Fossicking Act,[48] consent became a major issue to small miners, prospectors and fossickers. With the introduction of this new regime, legal fossicking on occupied Crown land now required the land occupier’s written permission.[49] This had the effect of elevating tenants to the status of “Owners”[50] for the narrow purpose of giving or withholding consent. In all other respects these new so-called “Owners” of Crown land remained mere tenants or occupiers, retaining their original limited rights in relation to Crown land in exchange for rent and certain obligations. It is important to understand that the rights of these new so-called “Owners” did not expand in any way beyond the ability to veto fossicker and prospector access. These pseudo-owners did not gain any additional rights in relation to the land they occupied. They did not gain the right to minerals and the land they occupied was still owned by the Crown, for the benefit of the State.

Protected Areas
Another form of Crown land is the “Protected area”. Under section 15 of the Nature Conservation Act 1992 (Qld) protected areas include:

(a) national parks (scientific); and
(b) national parks; and
(c) national parks (Aboriginal land); and
(d) national parks (Torres Strait Islander land); and
(e) national parks (recovery); and
(f) conservation parks; and
(g) resources reserves; and
(h) nature refuges; and
(i) coordinated conservation areas; and
(j) wilderness areas; and
(k) World Heritage management areas; and
(l) international agreement areas.

As with all Crown land, these areas are public land. They are owned by the State of Queensland for the benefit of the State (i.e. the community of Queensland). The Palmer Goldfield Reserve falls into the category of a resources reserve. For the purposes of the Fossicking Act protected areas are occupied land, the owner being a trustee, usually a State Government department. According to its management guidelines, the trustees for the Palmer Goldfield Reserve are the Department of Mines and Energy and the Department of Environment and Heritage. The trustees for protected areas generally put in place a management plan for these areas. The problem is that in most instances fossicking does not fit with the management plans for these areas or the personal ideals of the staff employed in these government departments. Where public consultation has occurred prior to management plans being finalised, fossicker’s input has for the most part, been restricted or ignored. As such the trustees of these areas have dictated to the public (fossickers) what activities are permissible in these areas. Quite simply these areas are public land, for the benefit of the public, fossickers included.

Government trustees of Crown land are public servants, employed by the public, fossickers included. As such the failure to incorporate fossicking in the management plans for these areas is a classic example of the tail wagging the dog. The management plans for these public lands need to be amended to facilitate access for all members of the public, fossickers included. The Fossicking Act needs to be amended to apply to these areas. The current situation is unacceptable as public activities are dictated by so called public servants under the guise of management plans and policy that actively discriminate against a certain sector of the population.

Issue 4 - Permission to fossick
When the Queensland Government did away with the miner’s right and introduced the permission requirement in relation to occupied Crown land, the Government did several things things. First they obliterated the long-standing legal right of prospectors, small miners and fossickers to enter and occupy Crown lands – that is public land. In other words prospectors, small miners and fossickers as members of the public were suddenly denied long standing legal access to public land. The significance of such an act cannot be understated. It is still being felt today and is a major cause of the current dearth of fossicking areas.

Secondly, the elevation of the tenants on public land to the status of “Owners” for the purpose of giving or withholding consent actively discriminates against prospectors, small miners and fossickers. By giving the power of veto to one land user, the Government has discriminated against other land users. Under the old regime both groups had legal rights of access and use to the same public lands. As such the current regime is discriminatory and remains discriminatory as long as one group retains the power to veto the other. Remember, we are not discussing private land here. The land in question is public land, owner by the taxpayers of Queensland. Remember also that in relation to pastoral leases Parliament never intended that form of public land tenure for the exclusive or sole use and enjoyment of the leaseholder. Pastoral leases are non-exclusive tenure and pastoralists are tenants on taxpayer’s land, despite what they may have you think.

Finally by doing away with the Miner’s right and introducing the requirement of consent, the Government has created a situation of conflict in relation to occupied public lands. Prospectors, small miners and fossickers are now competing against pseudo-owners for access to the same lands. One sector of the public is pitted against the other for access to and the use of public lands. Such a competing situation did not exist under the old regime as both groups had a legal right to access and use the same public lands. It’s important to remember that occupied Crown land is not private land. It is public land, owned by Queensland taxpayers (including fossickers) and it includes:

a. national parks,
b. state forests,
c. conservation parks,
d. resources reserves,
e. nature refuges,
f. coordinated conservation areas,
g. protected areas,
h. wilderness areas,
i. World Heritage management areas
j. pastoral leases,
k. occupational licenses,
l. permits to occupy and
m. stock grazing permits.

A to i are occupied by government trustees. Private individuals or companies occupy the last four categories of Crown land, generically known as pastoral leases. The reason we have a lack of access to these public lands is that under the current regime, fossickers need written permission to fossick from the tenants who occupy these public lands. The Fossicking Act 1994 (Qld) is the only Queensland law that elevates tenants on public land to the status of “owners”. Very few of these so-called owners will consent to fossicking. The government “owners” must abide by their management plans for these areas, none of which cater for fossicking. They appear more concerned with creating additional protected areas because that is where the votes are.

Remember, pastoral leases are non-exclusive tenure, which means when they were originally created they were never intended by Parliament to confer the right of occupation with the ability to exclude all others. That is Australian law which came to light in the Wik native title case. Basically pastoralists have the right to grass and water and the right to carry on pastoral activities. Pretty much all pastoral leases contain a clause stating that the Crown reserves the right to minerals and the right to access to search for minerals. Despite this, fossickers still need the pastoralist’s permission, despite the land being public non-exclusive tenure. At the end of the day, the main issue fossicker’s face is a lack of access to occupied Crown land. This is directly attributable to the permission requirement.

Issue 5 - The Current Situation
By any reasonable criterion, the Fossicking Act 1994 (Qld) is not working in its current form. The Queensland government has and continues to implement bad land management policies and laws that discriminate against one sector of the community. Further evidence of the lack of government consideration in relation to fossicking is the Land and Other Legislation Amendment Bill 2007. This bill, scheduled to become legislation in early 2008 will have an immediate impact on fossickers by imposing conservation requirements on leaseholders making it almost impossible to obtain consent to fossick. Despite this fossickers were not included in the consultation process for this bill. This paper illustrates how the current fossicking regime is wrong and how it is not working in practice. This situation is directly attributable to successive Queensland government for the following reasons.

1. Queensland governments have consistently failed to recognise and acknowledge that fossickers have a valid and legitimate interest in Crown lands.
2. Queensland governments have consistently failed to acknowledge and act on fossicker’s concerns that more areas need to be set aside for fossicking.
3. Queensland governments have consistently reduced potential fossicking areas by increasing protected areas and continues to do so.
4. Queensland governments have consistently failed to improve “access to well known fossicking localities” and
5. The current Queensland government continues to implemented fossicker adverse policies and legislation.
   

This has culminated in a fossicking regime that:

1. Has failed in achieving it’s own stated objectives,
2. Ignores long standing legal principles in relation to land use and access,
3. Actively discriminates between one land user and another and
4. Is not enforceable without an extreme increase in expenditure of public money.

POSSIBLE SOLUTIONS

1) Remove the consent requirement to fossick on all occupied Crown land.[51] Such an amendment will remedy the current inadequate and discriminatory situation, is in keeping with the intention of Parliament when creating these non-exclusive tenures, will be the least costly option for Government to implement, administer and regulate and it will have no adverse impact on occupiers of Crown land – as discussed above these occupiers are already adequately protected.

2) Alternately, remove the consent requirement to fossick on all occupied Crown land[52] with a history of mineral occurrences and or mining. Such an amendment will remedy the current inadequate and discriminatory situation is in keeping with the intention of Parliament when creating these non-exclusive tenures, will be the least costly option for Government to implement, administer and regulate and it will have no adverse impact on occupiers of Crown land.

3) If the consent requirement remains then the Queensland government needs to facilitate access to land occupied by government trustees and provide incentives for private lessees to consent to fossicking. For example, protected areas need to be opened to fossickers. This does not mean a minimal allocation of protected areas to fossickers, rather the whole of all protected areas need to be made available for fossicking. As discussed earlier fossicking is a low impact act and fossickers must already abide by strict environmental regulations. As stated earlier, environmental, cultural and heritage concerns in relation to fossicking is misplaced. Incentives for private lessees to consent to fossicking can include tenure extensions. For example when a lease is up for renewal, the government should renew the lease for a longer period if the lessee enters into an agreement with the government to facilitate fossicking on the lease. This is in keeping with the Land and Other Legislation Amendment Bill 2007 which facilitates indigenous access to leases, is in keeping with the intention of Parliament when creating these non-exclusive tenures, will be the least costly option for Government to implement, administer and regulate and it will have no adverse impact on occupiers of Crown land.

CONCLUSION
The Queensland government needs to recognise and acknowledge fossickers as legitimate land users. The Queensland government needs to facilitate fossicking access to much more Crown land and can afford to do so without compromising environmental, cultural and heritage values.

[1] Member for Tablelands (as he was then) Mr Gilmore, Queensland Legislative Assembly (30 March 1995) at 11699.
[2] “Review of Queensland Mining Discussion Paper” at 9
[3] Supra
[4] Supra
[5] Supra
[6] “Review of Queensland Mining Discussion Paper” at 13
[7] Supra
[8] Member for Whitsunday (as she was then) Mrs Bird, Queensland Legislative Assembly (16 November 1995) at 10354.
[9] Fossicking Bill 1994 (Qld) Explanatory notes at 1.
[10] Mining Lease Application No 20421
[11] Palmer Goldfields Reserve, Management Guidelines, Department of Minerals and Energy and Department of Environment and Heritage (1993) 3rd edition at 5 and 6.
[12] Director-General, Dept. Mines & Energy and Director, Dept. Environment & Heritage.
[13] Palmer Goldfields Reserve, Management Guidelines, Department of Minerals and Energy and Department of Environment and Heritage (1993) 3rd edition at 8.
[14]http://www.epa.qld.gov.au/parks_and_forests/find_a_park_or_forest/palmer_goldfield_resources_reserve/
[15] Palmer Goldfields Reserve, Management Guidelines, Department of Minerals and Energy and Department of Environment and Heritage (1993) 3rd edition at 8.
[16] Ibid at 9.
[17] S 17(f) Fossicking Regulation 1994 (Qld)
[18] Ss 58 & 59 Cultural Heritage Act 1992 (Qld)
[19] Part 3 Aboriginal Cultural Heritage Act 2003 (Qld)
[20] See Fossicking Bill 1994 (Qld), Explanatory notes at 1.
[21] Cairns – Mt Peter, Kamarunga, Mulgrave. Cooktown – Alice River, Lukinville, Potallah, Palmer River, East Palmerville, Emu Creek, Four Mile Bend, Bystertown, Madden’s Flat, Maytown, Mt Madden, Sandy Creek, the Conglomerate Workings, Jessop’s Hill, Jimmy Ah Chee’s Diggings, Starke No. 1, West Normanby and Dead Dog Creek. Herberton – Russell River, Mount Mascotte, Towalla, Rocky Creek, Mt Garnet and Mt Luxton. Innisfail – Bartle Frere, Jordan Creek, North Johnston and Badgery Creek, Lower Russell River goldfields and the Eubenangee discovery. Mareeba – Mareeba goldfield, Fluorspar, Mt Wandoo, Tate River, Williamstown, Curraghmore, Cyclone Creek, Groganville and Hodgkinson. Mossman – Daintree goldfield. Thursday Island and Weipa.
[22]http://www.epa.qld.gov.au/parks_and_forests/managing_parks_and_forests/forest_transfer_processes_in_queensland/
[23]Supra
[24] Petition 610-06
[25] Minister for Environment, Desley Boyle M.P. letter BNE 22618-2, BNE 2006/2412, E/06/00484 to The Clerk of the Parliament (20 March 2006).
[26] S 9 Fossicking Act 1994 (Qld)
[27] Minister for Environment, Lindy Nelson-Carr M.P. letter BNE18935-1, NE2007/2480, E/07/00425 to The Clerk of the Parliament (17 April 2007)
[28] Member for Charters Towers, Mr Knuth Queensland Legislative Assembly (17 February 2007) at 207.
[29] Supra
[30] Supra
[31] Supra
[32] Member for Charters Towers, Mr Knuth Queensland Legislative Assembly (17 February 2007) at 207.
[33] Member for Charters Towers, Mr Knuth Queensland Legislative Assembly (26 May 2006) at 2115.
[34] Mt Gibson and Agate and O’Brien’s Creek general permission areas are classified as North Queensland.
[35] S 15 (1) Mining Act 1898 (Qld)
[36] Mining Act 1968 (Qld)
[37] S 13 (a) Mining Act 1968 (Qld)
[38] Part I – Preliminary, S 3 Mining Act 1898 (Qld)
[39] Supra
[40] Supra
[41] Part II – Meaning of Terms, S 7 Definitions, Mining Act 1968 (Qld)
[42] Supra
[43] The year the Mineral Resources Act 1989 (Qld) took effect.
[44] Ss 6 & 70 Mining Act 1968 (Qld), S 8 Mineral Resources Act 1989 (Qld)
[45] Wik Peoples v State of Queensland, Thayorre Peoples v State of Queensland (1997) 187 CLR 1; 141 ALR 129
[46] Supra
[47] Supra
[48] Fossicking Act 1994 (Qld)
[49] S 27 (1)(a) Fossicking Act 1994 (Qld)
[50] See Schedule Dictionary Mineral Resources Act 1989 (Qld)
[51]Including national parks, state forests, conservation parks, resources reserves, nature refuges, coordinated conservation areas, protected areas, wilderness areas, World Heritage management areas, pastoral leases, occupational licenses, permits to occupy and stock grazing permit.
[52] Supra