Author Topic: Mine access and the BCA constitution.  (Read 5178 times)

Offline royfellows

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Mine access and the BCA constitution.
« on: April 12, 2016, 01:09:01 pm »
Society is forever changing as new discoveries are made and new technology emerges. And so the law also changes to reflect the above and changes in our societies attitudes and values.
I think its right to say that the nature of caving has changed over the years as mine exploration comes more and more into the equation, I think that there are more people visiting abandoned mines now that ever before.

BCA Constitution says "4.6. That the owners and tenants of property containing caves have the right to grant or withhold access." This has been touched upon before.
Further: 2.2. In this Constitution, the expression “cave” shall take the meaning as covering cave, pothole, mine or any other underground cavity and related terms shall be similarly construed.
Obviously, in joining an association one agrees to abide by its constitution.

Now the legal position is that a mine belongs to the mineral owner who is not necessarily the land owner. Usually the landowner and the mineral owner will be the same entity, but this is not always the case. The existing wording of the constitution as it is may be invalid from a legal point of view, in that it may attempt to confer rights on people who may not actually have them. This matter arose at the CCC AGM last year.

Now I am not trying to weaken the rights of landowners, the law does this all on its own without any help from me. Or am I trying to start arguments on here, but just offer a platform for discussion, and hear the opinions of others. To this end I am offering a hypothetical situation, but one which could become very real. It is something which needs to be looked at.

SITUATION
You are organising a special trip into Upper Dinas Silica Mines and for insurance or other reasons you need to gain written legal permission to enter the mine with your party. To this end you approach the landowner NRW, who advise you that they are unable to give permission because it’s not their mine, it belongs to Natural Amenities Ltd, the mineral owner, and suggest that you approach me as managing director.

QUESTION
Do you cancel the trip as the landowner is unable to give permission (in line with the BCA constitution which by joining you agreed to abide by) or go ahead and direct your application to me?
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Offline Madness

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Re: Mine access and the BCA constitution.
« Reply #1 on: April 12, 2016, 01:19:04 pm »
I'm not a BCA member, but even if I was, if I REALLY wanted to do the trip I'd contact you as the mine owner. I've got more important things to worry about than whether is contravines a constitution by a technicality.

Perhaps the term 'landowner' needs to be replaced by cave/mine owner in constitutions?

Offline RobinGriffiths

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Re: Mine access and the BCA constitution.
« Reply #2 on: April 12, 2016, 01:38:13 pm »
That's the problem with modelling the real world. Constitutional points may have been put in place for a reason thought valid at the time, but over time, they may not reflect the world as it is. You then have to decide whether to follow the letter or take a more pragmatic common sense approach.

Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #3 on: April 12, 2016, 01:53:28 pm »
If you were to consider the mineral rights owner as a 'tenant' then would the constitutional problem go away?

I know they are not a tenant in the strict sense of the law, but for the purposes of interpreting the BCA constitution this would seem to be a sensible approach.
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #4 on: April 12, 2016, 02:07:14 pm »

I know they are not a tenant in the strict sense of the law,

Hello Nick, sorry no, not in any sense at all. Its 'mineral owner' per se, the 'rights' are ancillary to the ownership.
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #5 on: April 12, 2016, 02:23:39 pm »
This is a classic example of a constitution being 'fit for purpose' at the time it was written, but as Roy indicates, society, systems and laws change to keep abreast of changing times. This illustrates the need for continuous review and revision of constitutions.

I suspect the line Nick has suggested could have some standing, the mineral owner could be construed as a 'tenant' of the mine entrance having right of access to his mine? (access to the entrance being the right of the landowner), this right of access could be conferred on third parties?
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Offline Clive G

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Re: Mine access and the BCA constitution.
« Reply #6 on: April 12, 2016, 02:25:25 pm »
Although the BCA constitution may be phrased to include mines, I should have thought that people primarily interested in exploring old mine workings would take advice from organisations such as NAMHO: http://www.namho.org/

Quote
Active mine explorers will also find guidance on managing archaeological finds underground as well as how to lead groups of novices and experienced explorers.

It is the person who occupies land, be they a freeholder or leaseholder, who can grant permission for you to cross the land and/or permit passage across the land for designated purposes, according to the law of the land. Unless the freeholder has subjected a leaseholder of his land to a relevant covenant then he cannot grant permission for third parties to cross the land over and above the leaseholder's wishes, without payment of some kind of compensation.

If having obtained permission to cross land, or having crossed open public land (where no fences or notices have been erected to keep the public out), for reaching the entrance to an old mine working, which is open to the air, you decide to go down the mine then that would be on your own responsibility. Should the owner of the mine working not have closed off the mine working, or any temporary closure has become ineffective with time and erosion, thereby enabling entry to be made, especially if no notices to the contrary are posted, then I doubt whether the owner of the mineral rights would have grounds to complain about people entering the mine.

However, people have to realise that certain types of mines can potentially be extremely hazardous and more so than natural caves. So, here is the sense in carrying out such explorations via a group or association which has specialist mining knowledge and expertise, such as NAMHO and its affiliated bodies.

Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #7 on: April 12, 2016, 02:57:43 pm »
Putting aside the issue of mineral, sporting, or grazing ownership which includes the right of surface entry, a conveyance of property can include restrictive covenants such as the right to lay pipelines and cables in favour of the vendor. Obviously, people such as contractors for instance can work on behalf of one of the parties.

This right was retained by the Crown when CMT acquired Cwmystwyth.
Similarly, shafts and adits were fenced by the Crown in the Cwmystwyth mineral rights area prior to the sale to CMT. Here land ownership was in the hands of a local farmer and he was slightly annoyed by them not even telling him what they were going to do.

The rights connected with mineral ownership are as correctly stated subject to compensation to be paid to the landowner, but these are based on loss to the landowner so normally would exclude say the ordinary right of entry.

The conveyance ' catch all' description is "all mines and minerals" which as confirmed by test case includes the right to 'drive levels, sink shafts, lay roads, dump spoil, and erect buildings, and do all manner of things conductive to the extraction of the minerals, but subject to fair compensation being payable to the landowner. This being an implied right of mineral ownership.

Thing to remember is that there is a complete freedom of contract in land conveyance.

The legal situation is extremely complicated and rights may vary according to deed, also manorial mineral rights being slightly different again.
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #8 on: April 12, 2016, 03:09:26 pm »
For anybody who is really interested in all this, "there is a book" as Tony Oldham would say
History and Practice of the Law of Mines and Minerals. The only thing is that some of it is now out of date in light of recent test cases such as Bocardo V Star Energy
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Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #9 on: April 12, 2016, 03:17:10 pm »
Speaking as someone who:

- Lives on Hucklow Edge (one of the oldest continuously mined locations in the country, if not the world);
- Owns property nearby which includes an abandoned lead mine;
- Is a Juror of the Great Barmote Court;
- Is a land holding trustee of a charity which owns land, including mineral rights, which is actively being mined by one of the last hard rock mines in the country;
- Is Chairman of the Parish Council and is co-ordinating a project to make safe the many abandoned shafts on the Edge;

I have a very good understanding of the complexity of mineral rights (and the realities of enforcing them).

However, it's still not clear to me exactly what the problem is, or whether its a serious enough problem to warrant a change in the BCA Constitution. Surely, the mineral owner is just another 'owner' within the meaning of "owners and tenants of property"?

Roy, this is the first time I have heard that this was discussed at the CCC AGM. If this is a serious problem to you, I think it unlikely that we will resolve it via this forum but I'll be happy to meet with you to discuss the problem and what BCA can do to help. You have my e-mail address if you'd like to contact me.
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #10 on: April 12, 2016, 03:24:36 pm »
Is this a regional issue?, I understand different regions have their own particular rules, here in the Peak District we have the Barmote courts, in Cornwall they have the Stanneries, etc..
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #11 on: April 12, 2016, 03:41:10 pm »

However, it's still not clear to me exactly what the problem is, or whether its a serious enough problem to warrant a change in the BCA Constitution. Surely, the mineral owner is just another 'owner' within the meaning of "owners and tenants of property"?

That is an interesting point, which is why I open the thread, to hear views such as this. A very good point to which I will appropriately draw attention of some people.
I am sure that I have seen this misquoted somewhere.


Roy, this is the first time I have heard that this was discussed at the CCC AGM. If this is a serious problem to you, I think it unlikely that we will resolve it via this forum but I'll be happy to meet with you to discuss the problem and what BCA can do to help. You have my e-mail address if you'd like to contact me.

CCC, its in the minutes and there to read.

Serious problem to me, certainly not. I was just interested in hearing peoples views. Although Internet names prevail I am aware that several members of the BCA committee are on this website and I would think that the opinions being expressed would be of interest.
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Offline Wayland Smith

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Re: Mine access and the BCA constitution.
« Reply #12 on: April 12, 2016, 03:45:34 pm »
Without getting into the question of Mineral rights and land ownership.
The current legislation for mines is "The Mines Regulations 2014"
http://www.hse.gov.uk/pubns/books/l149.htm

This is national legislation and can not be over-ridden by local rules however long established.

Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #13 on: April 12, 2016, 03:55:36 pm »
The Mines Regulations 2014 have no effect on mineral rights. The only part which might be relevant in the context of this thread is that they define the 'mine owner' as the person who has the right to work the mine. This may or may not be the mineral owner, and may or may not be the person who actually works the mine. This lack of clarity is itself a reflection of the complexity of mineral rights in law.

Note also that in this context a 'person' can be a company or an individual.
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Offline AR

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Re: Mine access and the BCA constitution.
« Reply #14 on: April 12, 2016, 03:58:48 pm »
The Peak District laws have been brought into statute (1851 High Peak mining & mineral courts act, 1852 Derbyshire mining & mineral courts act) but the clauses governing access definitely do not apply to caving trips. I believe the Forest of Dean laws have also been brought into statute but since they only apply to those born within the Hundred of St. Briavels who've worked in a mine for a year and a day I think it's safe to say those are also irrelevant...
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #15 on: April 12, 2016, 04:04:01 pm »
Am I right in thinking the mineral owner in the majority of the High Peak is the Crown? hence the requirement of the mine owner to pay a tithe to them or their representative?
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Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #16 on: April 12, 2016, 04:07:49 pm »
Bograt,

No, it's a lot more complex than that. Different minerals have different owners, and Chatsworth has a major stake (but isn't the only one).

Sorry, no more time to go into it now.
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #17 on: April 12, 2016, 04:09:32 pm »
Sorry Nick, thinking mainly of lead.
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #18 on: April 12, 2016, 04:12:28 pm »
........ lack of clarity is itself a reflection of the complexity of mineral rights in law.

Nail on the head. I like it
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Offline AR

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Re: Mine access and the BCA constitution.
« Reply #19 on: April 12, 2016, 10:42:53 pm »
Sorry Nick, thinking mainly of lead.

The Duchy of Lancaster have the largest part of the High Peak lead rights, but Chatsworth also have a major stake (Ashford north and southside, Hartington and the Granges, part ownership of Youlgreave and Birchover), then Haddon  (Hazlebadge, Alport and Bakewell), while Litton is Lord Scarsdale's and Stanton is with the Davie-Thornhills. Eyam, Stoney Middleton, Grindlow, Calver, Hassop, Rowland, Youlgreave and Bradford are in fragmented private ownership. Spar rights are even more fragmented, sometimes with the freehold owner, sometimes the estates have reserved them.
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Offline D.Snaith

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Re: Mine access and the BCA constitution.
« Reply #20 on: April 13, 2016, 08:00:44 am »
 I have always been told that as long as you have landowner consent to enter a mine, you are free to do so. It is only if you plan to remove material from the mine that the owner of the mineral rights becomes involved.
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Offline todcaver

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Re: Mine access and the BCA constitution.
« Reply #21 on: April 13, 2016, 10:29:43 am »
I could understand these mine owners if people were going in to  mine there minerals  :shrug:
Which obviously isn't the case , so the only 2 issues left are not walking across land or just a resentment of exploration or fun  ?¿

Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #22 on: April 13, 2016, 11:36:46 am »
I could understand these mine owners if people were going in to  mine there minerals  :shrug:
Which obviously isn't the case , so the only 2 issues left are not walking across land or just a resentment of exploration or fun  ?¿

Some people do go in to mine their minerals!
There is also the fear of legal liability.
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Offline todcaver

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Re: Mine access and the BCA constitution.
« Reply #23 on: April 13, 2016, 01:03:03 pm »
Surely if people are currently mining minerals illegally they would need processing plants , trucks , and all sorts of really obvious mining equipment , pick axes e,c,t

Offline Wayland Smith

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Re: Mine access and the BCA constitution.
« Reply #24 on: April 13, 2016, 01:18:18 pm »
Surely if people are currently mining minerals illegally they would need processing plants , trucks , and all sorts of really obvious mining equipment , pick axes e,c,t
Mineral collectors are only taking relatively small amounts, not tons.
They can however do a lot of damage to get those specimens.

Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #25 on: April 13, 2016, 02:19:01 pm »
and a lot of damage to good landowner relations.
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Offline Jenny P

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Re: Mine access and the BCA constitution.
« Reply #26 on: April 13, 2016, 02:59:13 pm »
This has happened in the Peak District where mineral collectors have gone after mines and also caves in search of specimens. 

It is not unknown to find a mine with lots of newspaper parcels strewn around the floor and, when these are unwrapped, they turn out to be unwanted mineral specimens - the collectors hacked out everything they thought might be worth something but then sorted through and discarded items thought to be of lesser value.  So all the damage had been done but they didn't actually want all that they had hacked off.

It also happened in Giants Hole a few years ago: a large curtain was smashed relatively close to the entrance but in a side passage which was not believed to well known or easily accessibly.  Some of us took the remaining broken pieces out of the cave with the thought that we might be able to repair the formation and replace it in situ (as was done with the Lancaster Columns) - but we then realised that most of the pieces were missing altogether; collectors had smashed it and taken the best and largest chunks and left the rest lying around.  Sadly the cave is the property of an "absentee landowner" who collects money from people who visit the cave but does not restrict entry to "cavers" - it's well known, close to the road and is known to be very easy going for several hundred meters so that it is visited by many non-cavers (stag party groups have been met there) and also by badly led and inappropriate "adventure groups". 
Giants can't be gated or protected in any way now as the difficult sections of the entrance series were blasted away by the then owner in 1967 in an ill-advised attempt to turn it into a show cave.  It was done without the knowledge of cavers while there was a foot-and-mouth epidemic on and cavers were obeying requests to stay away, there was no statutory protection we could have called on to protect the site and, in the event, the County Surveyor refused permission for the show cave on the grounds of poor access to any car park proposed.

So it's not just "cavers" who can be vandals - some cave owners can be responsible for encouraging damage by their actions and don't seem to care about the consequences.

I don't know how you get the conservation message across in this situation.

Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #27 on: April 13, 2016, 03:14:05 pm »
I don't know how you get the conservation message across in this situation.

A Samurai sword could be part of that equation
 :lol:
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Offline todcaver

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Re: Mine access and the BCA constitution.
« Reply #28 on: April 13, 2016, 03:24:20 pm »
So a few arseholes have collected some minerals and some proper arseholes have damaged some caves ,,,,,  conclusion = close up all access to mines  ??
Correct me if I've got it wrong so far ? :shrug:

Offline Jenny P

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Re: Mine access and the BCA constitution.
« Reply #29 on: April 13, 2016, 03:46:10 pm »
I wasn't suggesting "close all access to mines" as a solution.  It's much more complicated than that!

The problem with mines is similar to that with caves: how do you maintain the best access for "good guys" with minimum of hassle while protecting those sites which are most at risk because of fragile artifacts or mineral exposures of special interest.

Educating cavers and mine explorers who are within the "system", whether members of clubs or not, is relatively easy - the tricky part is educating the general public and the type who think underground sites are for stag parties, mineral collecting and generally trashing 'cos it's fun.

I don't profess know the answer but I am sure that it is not just to slap a gate on anything and everything willy-nilly. 

Offline Peter Burgess

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Re: Mine access and the BCA constitution.
« Reply #30 on: April 13, 2016, 03:51:28 pm »
Mines, both active and abandoned, are legal entities. Caves are not. You cannot and should not compare them in regards to access. NAMHO guidelines have covered this well.

Offline Brains

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Re: Mine access and the BCA constitution.
« Reply #31 on: April 13, 2016, 04:11:37 pm »
Browns Folly ine (actually a quarry) in Wiltshire crosses two landowners property. One gas taken the route of leaving access open, the other has gated everything. However, persons unknown have seen fit to mount a persistent and chronic attack on the gates, to the extent of complete removal. The underground areas are then fouled with everything from paint to poo. Artifacts are destroyed and aold garffitti by the miners deliberately painted over. Square well has been cracked open and now has a few inches of raw sewage, dead mice and tinned fish "swimming" at the bottom.
How could this situation be improved? I would suggest by a constant and ongoing censure of the vandals in public, naming and shaming when known, and supporting the efforts to tidy up the underground mess. Pulling down stacked deads is not "A good workout" as one idiot was quoted as saying.
Perhaps official access would allow more of the caring law abiding explorers to view the place and mount the pressure on the scum bags to go and use a toilet instead!

Online JasonC

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Re: Mine access and the BCA constitution.
« Reply #32 on: April 13, 2016, 04:14:36 pm »
I am a bit puzzled by this clause of the BCA constitution, and have been ever since it was quoted in the First Crow War.

Surely the access and mineral rights of tenants and landowners are what the law says (or what a court decides)?  The BCA has no power to alter those rights, so why does it need such a clause in its constitution?
If the original intention was simply to exhort members to obey the law and be considerate to landowners, well and good, but surely it's not a constitutional matter.  Rather perhaps, a candidate for a 'caving code' or something...

Would anything be lost by simply removing clause 4.6 ?    Just a thought...

Offline todcaver

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Re: Mine access and the BCA constitution.
« Reply #33 on: April 13, 2016, 07:46:13 pm »
Would BCA insurance be enough to ensure entry to a gated / controlled mine or cave ?¿

Offline Madness

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Re: Mine access and the BCA constitution.
« Reply #34 on: April 13, 2016, 08:08:08 pm »
Does anyone think that the upturn in vandalism in mines and caves has anything to do with the increasing popularity of 'Urban Exploration?

Offline Brains

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Re: Mine access and the BCA constitution.
« Reply #35 on: April 13, 2016, 08:12:52 pm »
Does anyone think that the upturn in vandalism in mines and caves has anything to do with the increasing popularity of 'Urban Exploration?
I believe so - the profusion of web based info and a love of derelict / trashed places to photo seems to be self feeding issue. Dont forget to "Tag" where you have been!

Online Ian Adams

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Re: Mine access and the BCA constitution.
« Reply #36 on: April 13, 2016, 09:02:31 pm »
I know a good amount of both cavers and Mine explorers.

Of the people I know, most are passionate about their interest and would act in the exact opposite of vandalism. The remainder are all respectful of their environment at the very least.

I don't believe that vandalism is caused by cavers or mine-explorers who are actively engaged in either activity.

Whether it is Urban Explorers or some other group(s) I wouldn't like to say.

Of all the arguing, postering and mud-slinging we have witnessed here and elsewhere, I think it is fair to say that we all share at least one quality - we care about our caves and mines.

....It's not "us" that is the cause.

 :)

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Offline AR

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Re: Mine access and the BCA constitution.
« Reply #37 on: April 13, 2016, 09:10:32 pm »
Would BCA insurance be enough to ensure entry to a gated / controlled mine or cave ?¿

That entirely depends on the attitude of the landowner/mineral owner/controlling body to cavers and  the reason why there is a gate. Within a few miles of where I am now I can think of one gated mine where the entry requirement is current BCA cover and a Derbyshire key, and another where BCA cover is not required but you have to sign a waiver form, make a donation and go in with an approved leader, so in that case, just posessing a current card won't get you in.
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Offline droid

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Re: Mine access and the BCA constitution.
« Reply #38 on: April 14, 2016, 04:31:00 am »

Of all the arguing, postering and mud-slinging we have witnessed here and elsewhere, I think it is fair to say that we all share at least one quality - we care about our caves and mines.



Ian

Absolutely agree.
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