Like many I am a bit aghast at the Compliance determination on highbanking but we do need to look closely at the wording of MINING REGULATION 2016 - REG 12 Fossicking. I am no lawyer but the regulations are not well worded and fail to provide definitive help to avoid confusion.
At the core of the issue is whether the use of water pumps is what distinguishes highbanking from, say, stream sluices. Regulation 12 is quite clear in its wording on one issue and I quote the relevant edited sections.
(2) A person must not carry out work that includes any of the following activities for the purpose of fossicking:
(a) the use of any equipment other than hand-held implements on any land or waters that is subject to native title,
(b) the excavation or clearing of any land or waters that is subject to native title,
(c) the use of power-operated equipment for the purpose of surface disturbance, excavation or processing on any land,
Maximum penalty: 50 penalty units.
If any mechanical or electric powered equipment is used for processing on any land then it is, on a first reading, not allowed. So, if we use a mechanical or electric powered water pump to feed water to a highbanker then it is not allowed. That is what the compliance notice seems to be saying.
However, is it that cut and dried?
You will notice that sections (a) and (b) both refer to any land or waters subject to native title. This is interesting, because the or waters is NOT used in (c). Why not? Whether this is because the full Regulation wording mirrors other native title regulations or is an oversight may be important. It could be argued that the absence of or waters might allow the use of powered equipment ( water pumps) where the equipment is used to only pump water but in waterways but not on land
The NSW laws have various definitions of land but I would defer to the Common Law definition. Look it up. Now, NSW laws do define waters as inland, estuarine and marine and inland waters refer to rivers, streams, underground and wetlands. One implication is that rivers and streams might be regarded as distinct from land but we have to look at whether the use of or waters is just an encompassing phrase to cover all the bases for the native title regulations. It seems to me that, in one sense, that waterways are treated as distinct from land, which is why (a) and (b) cover both land or waters. A lot hangs on the or word.
Its an argument fraught with problems and the best conclusion I have is that we dont want to be caught up on the wrong end of an expensive penalty notice so do err on the side of caution.
A stream sluice may be a pain in the rear end to feed but it avoids the risk of a penalty notice.
Now if you can run water down a long hose under gravity (no dams allowed by the way fishing regulations) to a sluice then there is no powered (water pump) equipment and the problem is also resolved. Been there, done that decades ago. The compliance issue seems to be fixated on the use of powered equipment so we need to fall back on our ingenuity rather than having a hissy fit about petty minded bureaucracy. Just my threepence worth.
NAPFA may have great intentions but until I see them getting good legal advice it is just a talkfest with bureaucrats which is never going to end well.
Kindest regards 
