Burns v Redland City Council
[2025] QDC 15
•28 February 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Burns v Redland City Council [2025] QDC 15
PARTIES:
DARREN BURNS
(Appellant)v
REDLANDS CITY COUNCIL
(Respondent)FILE NO:
621/24
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
28 February 2025
DELIVERED AT:
Brisbane
HEARING DATE:
23 and 29 August 2024
JUDGE:
Porter KC DCJ
ORDERS:
1. The appeal is allowed.
2. The conviction is set aside.
3. A verdict of not guilty be entered in relation to charge 1, carrying out prohibited development in breach of s. 162 Planning Act 2016.
4. The orders of the Magistrates Court made 5 February 2024 imposing a fine of $20,000 and ordering the appellant to pay professional costs and costs of Court, be set aside.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL BY WAY OF REHEARING – where the appellant was a member of the Quandamooka people – where a native title determination had been made by the Federal Court under s. 87 Native Title Act 1993 determining native title rights of Quandamooka people – where the appellant cleared land on North Stradbroke Island which land was the subject of the Determination, for the purpose of constructing a house for his daughter’s family – where the appellant was convicted in the Magistrates court of one count of carrying out prohibited development under s. 162 Planning Act 2016 by clearing native vegetation on prescribed land – whether the trial Judge erred in failing to conclude that the clearing was authorised by the Determination – whether the trial judge erred in failing to conclude that an exemption for clearing vegetation for a traditional Aboriginal cultural activity applied – whether the trial judge erred in concluding that no defence of honest claim of right arose under s. 22(2) Criminal Code Act 1899 (Qld) because the offence was not an offence relating to property – whether the Determination provides an answer to the charge as a matter of law
CRIMINAL LAW – DEFENCE – NATIVE TITLE DETERMINATION – where the land cleared was subject to a Determination of native title – whether the clearing by the appellant for the purpose of constructing a permanent, modern dwelling for his daughter was authorised by the Determination – whether the appellant’s clearing of the land could be considered separate from his purpose in doing so – where the appellant retained a contractor to clear the land – whether the Determination authorised the appellant to exercise rights under the Determination by a non-Quandamooka agent
CRIMINAL LAW – EXEMPTION – TRADITIONAL ABORIGINAL CULTURAL ACTIVITY – where clearing of native vegetation which was exempt clearing work was not unlawful under s. 162 Planning Act – where exempt clearing work included clearing for a traditional Aboriginal cultural activity – whether the trial judge erred by treating evidence adduced on that exemption as inadmissible – whether the trial was unfair because of the effect of an intimation that evidence from Quandamooka people on traditional culture could only be led as expert evidence – where the Court on appeal determined the proper construction of the exemption – whether evidence at trial established the existence of a traditional Aboriginal cultural activity which extended to the clearing of the land – whether statements in reasons given on making of the orders making the Determination under s. 87 Native Title Act were admissible as evidence of traditional Aboriginal cultural activity in the trial – where the admissible evidence failed to establish the content of any norms or shared beliefs – where the admissible evidence failed to establish that any Quandamooka cultural activity authorising the clearing was traditional
CRIMINAL LAW – DEFENCE – HONEST CLAIM OF RIGHT – whether the offence charged is an offence relating to property – whether the prosecution can exclude beyond reasonable doubt that in clearing of the land, the appellant was doing acts with respect of any property in exercise of an honest claim of right and without intention to defraud – where the evidence raised the proposition that at the time the appellant cleared the land, he believed he was entitled to clear the land for building purposes in accordance with a right that all Quandamooka people had, based on historical practices, which he considered to be a native title right – whether the claim of right is within the scope of s 22(2)
CASES:
LEGISLATION:
SECONDARY MATERIALS:
COUNSEL:
SOLICITORS:
Akiba v Commonwealth (2013) 300 ALR 1
Baker v Smith [2021] QCA 66
Baker v Smith (No. 1) [2019] QDC 76
Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464
Byrnes v Kendle (2011) 243 CLR 253
Delany on behalf of the Quandamooka People v State of Queensland [2011] FCA 741
Freddie v Northern Territory [2017] FCA 867
Malone v State of Queensland (No. 5) [2021] FCA 1639
McDonald v Holeszko [2019] QCA 285
Molina v Zurich [2001] WASCA 337
Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9
Narrier v State of Western Australia [2016] FCA 1519
R v Hobart Magalu [1974] PNGLR 188
Rogers v The Queen (1994) 181 CLR 251
Scriven v Sargent [2017] QCA 95
Stevenson v Yasso [2006] 2 Qd R 150
Walden v Henzler (1987) 163 CLR 561
Yanner v Eaton (1999) 201 CLR 351
Acts Interpretation Act 1954 (Qld) ss. 13A, 36 and schedule 1
Criminal Code 1899 (Qld) ss. 22(1), 22(2), 36 and 590B
Evidence Act 1995 (Cth) ss. 72A and 78A
Evidence Act 1977 (Qld) ss. 53 and 93B
Integrated Planning Act1997 (Qld) s. 4.3.1
Justices Act 1886 (Qld) s. 76
Native Title Act 1993 (Cth) ss. 87, 211 and 225
Planning Act 2016 (Qld) ss. 43, 44, 162, 163 and schedule 2
Planning Regulation 2017 (Qld) ss. 19, schedule 10 part 3 s. 4(1)(a), 4(1)(b), 4(1)(c), schedule 21 part 1 s. 1(5) and schedule 24
Sustainable Planning Act 2009 s. 578(1)
Sustainable Planning Regulation 2009 schedule 24 parts 1-2
Macquarie Dictionary (5th ed, 2009)
Peter Watts KC and F.M.B Reynolds KC, Bowstead & Reynolds on Agency (Sweet & Maxwell, 23rd ed, 2023)
Richard H. Bartlett, Native Title in Australia (LexisNexis Australia, 5th ed, 2023)
A. Preston for the appellant
K. Wylie and K. O’Hare for the respondent
Queensland South Native Title Services Ltd for the appellant
Council Legal Services for the respondent
Contents
SUMMARY
THE LAND AND THE CLEARING
THE OFFENCE
THE TRIAL
THE REASONS
THE GROUNDS OF APPEAL
THE QUANDAMOOKA DETERMINATION
Scope of the rights
The Determination
The parties’ submissionsAnalysis
Conclusion
Does the Determination provide an answer to the charge?
CULTURAL ACTIVITY EXEMPTION
Proper construction
Evidence
The issues on appeal
Principles
His Honour’s approach to the culture evidence
Dr Cooms
Mr Costello
Mr Burns
The Determination Reasons as evidence
Analysis
Onus of proof
Analysis of the evidence
Conclusion
HONEST CLAIM OF RIGHT
Offence relating to property
The honest claim of right
Honesty
The claim of right
Is the claim of right within the scope of s. 22(2)?
CONCLUSION
SUMMARY
Mr Burns is a member of the Quandamooka people whose traditional lands include North Stradbroke Island[1] (the island). In mid-2020 he cleared some land on the island. The Council alleged that the clearing was prohibited development carried out in breach of s. 162 Planning Act 2016 (the Planning Act). Mr Burns was charged with an offence against that provision. Relevant to this appeal, Mr Burns defended the charge on three grounds:
(a)First, that the clearing was lawful under the Native Title Determination made in Delany on behalf of the Quandamooka People v State of Queensland [2011] FCA 741 (the Determination) and that right provided an answer to the charge under s. 162;
(b)Second, that the clearing was a traditional Aboriginal cultural activity and therefore fell within the scope of an express exemption for such activity from the scope of the offence arising under s. 162 Planning Act (the cultural activity exemption); and
(c)Third, that if the clearing was not lawful under the Determination or the cultural activity exemption, the evidence raised the defence provided by s. 22(2) Criminal Code 1899 (the Code) in that Mr Burns honestly believed that he was entitled by the Determination or under the cultural activity exemption to clear the land and that defence was not excluded beyond reasonable doubt by the complainant Council.
[1] Minjerriba appears to be a word used by Quandamooka people for (presumably the whole of) Stradbroke Island. The original island became two islands in 1896 as the consequence of the detonation of a cargo of explosives on the wreck of the Cambus Wallace at a narrow isthmus in the southern half of the then single island. Most of the participants in the trial used the name Stradbroke Island or North Stradbroke Island or just the island when referring to the location of the land, so I have followed suit.
After a trial lasting five days, the learned Magistrate found Mr Burns guilty and gave oral reasons.[2] He imposed a fine of $20,000, plus costs of some $33,000. He did not record a conviction.
[2] There was an alternative charge of one count of carrying out assessable development without a permit in breach of s. 163 Planning Act, but Mr Burns was found not guilty of that offence and no appeal is brought against that verdict. I will not refer further to that charge.
Mr Burns appealed his conviction to this Court. He submits on appeal, in broad terms, that his Honour erred in rejecting each of the three grounds articulated above. For the reasons that follow, I have concluded that:
(a)The clearing was not authorised by the Determination or the cultural activity exemption;
(b)The evidence at trial did raise a defence under s. 22(2) which was not excluded by Council.
Accordingly, Mr Burns succeeds on his appeal against conviction.
THE LAND AND THE CLEARING
There was no challenge on appeal to the facts found by his Honour as to the acts of clearing alleged against Mr Burns. It is convenient to set out those matters first, though I will present his Honour’s findings in a slightly different order and supplement them with other facts which appear uncontentious on the appeal.
Mr Darren Burns is a Quandamooka man residing on the island in his mother’s house at Dunwich. He is paying off that house and expects to inherit it. It is his intention that that house will ultimately be inherited by his eldest son. Mr Burns also has a daughter who has started a family of her own. He was concerned about his daughter’s housing needs with a growing family (a concern with which many parents can empathise).
Sometime after 2015 and before 2020, Mr Burns decided that he should set aside some land so he could build a house for his daughter. He had had his eye on a particular parcel of land for some time, an elevated block with views to the north (the land). Sometime after 2015, he cut a blaze on some trees on the land. He did this to identify to other Quandamooka people that the land was taken and that they should look elsewhere if they wanted to claim land in the way that he had.
Mr Burns was not the registered proprietor of the land nor was there a separate title for it. The land was a part of the parcel of land on the island described as Lot 153 SP304073 (the parcel). The parcel was located within the Redland City Council local government area. It is classified as Reserve Land and was owned by the State Government through SEQ Water as trustee. The vegetation and habitat on the parcel was of value. The vegetation was classified under the Vegetation Management Act 1999 (VMA) as remnant vegetation and as essential habitat. Clearing on the parcel was regulated by the Planning Act. (I explain the statutory framework below.) The parcel was also included as part of the land on the island in respect of which Quandamooka people had certain non-exclusive native title rights under the Determination.
Sometime after May 2020, Mr Burns engaged a contractor to clear the land and the contractor cleared all the vegetation, including all the canopy trees. The only exception was a single large bloodwood tree. The area cleared was 2400m2. The cleared vegetation was placed in three piles. There was no evidence that the cleared timber was dealt with in a manner consistent with milling for construction. Rather, in February 2023, Mr Burns burnt the piles of vegetation.
The clearing of the land came to the attention of the police. A police officer spoke to Mr Burns with a view to discovering who had cleared the land and why. Mr Burns told the officer he (Mr Burns) was responsible for the clearing and that he was intending to pour some footings in preparation for the construction of a house. He later said in evidence he intended on building a three bedroom house with a veranda and perhaps a second storey.
THE OFFENCE
Given the issues raised on the appeal, it is necessary to set out the statutory basis of the offence in some detail. The starting point is the offence creating provision. Section 162 Planning Act is deceptively simple:
162 CARRYING OUT PROHIBITED DEVELOPMENT
A person must not carry out prohibited development, unless -
(a) the development is carried out under a development approval given for a superseded planning scheme application; or
(b)the local government for the area in which the development is carried out has agreed, or is taken to have agreed, to a request under section 29 (4) (b) for the development.
Maximum penalty - 4,500 penalty units.
I say deceptively, because the phrase ‘prohibited development’ covers an extravagantly wide range of matters. The two words call up other defined terms derived from the Planning Act, the Planning Regulation 2017 (the Planning Regulations) and, in many cases, other statutes and Town Planning instruments. Identifying exactly what acts are prohibited by s. 162 in any particular case requires reference to the particulars of the offence identified in the complaint and to the statutory provisions which support it. Here, the complaint particularised the offence as arising from the clearing of native vegetation on the land. That conduct fell within the scope of the offence created by s. 162 as follows.
Development is defined in Schedule 2 Planning Act:
development means-
(a) carrying out -
(i) building work; or
(ii) plumbing or drainage work; or
(iii) operational work; or
(b) reconfiguring a lot; or
(c) making a material change of use of premises
Operational work is defined in Schedule 2 to mean work other than building or plumbing work on premises that “materially affects premises or the use of premises”. Premises is defined as including land. Council submitted that given the scale and area of clearing, the clearing was operational work and therefore development. That was not in dispute.
Section 44 Planning Act creates three categories of development: prohibited development, assessable development and accepted development. Development may be categorised by a regulation or by a planning scheme (see s. 43 Planning Act). The Council relied, relevantly for this appeal, on the Planning Regulations.
Section 19 Planning Regulations define prohibited development as, development stated to be prohibited development in schedule 10 Planning Regulations. Part 3 of schedule 10 deals with clearing of native vegetation and relevantly provides:
Division 1 Prohibited Development
4. Prohibited development – clearing native vegetation other than for a relevant purpose
(1)Operational work that is clearing of native vegetation on prescribed land is prohibited development to the extent the work:
(a)is not for a relevant purpose under the Vegetation Management Act, section 22A; and
(b)is not exempt clearing work; and
(c)is not accepted development under schedule 7, part 3, section 12.
[underlining added]
‘Native vegetation’ is defined as a native tree or plant. ‘Clear’ is expansively defined.[3] ‘Prescribed land’ is defined in schedule 24 Planning Regulations as meaning, relevantly, trust land under the Land Act 1994. That definition applies to the parcel.
[3] Both definitions pick up definitions in the VMA.
The ‘exempt clearing work’ exception in s. 4(1)(b) is central to this appeal. Exempt clearing work is defined in schedule 24 Planning Regulations to include, relevantly, clearing stated in schedule 21, part 1. Schedule 21 part 1 relevantly provides:
Part 1 Clearing and other activities or matters - general
1Clearing and other activities or matters for premises generally
(1)Clearing vegetation under a development approval for a material change of use or reconfiguring a lot, if—
(a) the approval is for a development application for which the chief executive is a referral agency in relation to vegetation clearing; or
(b) the approval is for a development application—
(i) that relates only to lots of less than 5ha; and
(ii) for which a local government is the prescribed assessment manager.
…
(5)A traditional Aboriginal or Torres Strait Islander cultural activity, other than a commercial activity.
[underlining added]
The syntax is a bit awkward as subsection (5) does not contain words referring to clearing nor does it state how the relevant cultural activity must relate to clearing. However, in my view, reading schedule 10 part 3 s. 4(1)(b) together with subsection (5), the Planning Regulations impliedly provides that clearing of native vegetation for or as part of a traditional Aboriginal cultural activity is exempt clearing work and therefore not prohibited development.
THE TRIAL
The trial was heard over five days commencing 4 December 2023. Mr McAvoy SC appeared for Mr Burns and Mr Wylie appeared for the Council. Mr Burns chose to give and call evidence. He called a Dr Cooms and a Mr Costello, both Quandamooka people who were called primarily to give evidence relevant to traditional Quandamooka cultural activities. His Honour gave oral reasons for judgment on 5 February 2024. He found Mr Burns guilty of an offence against s. 162 Planning Act. (There was an also alternative charge which need not be further considered.) His Honour did not record a conviction and imposed a fine of $20,000 along with professional costs of $33,009.09 and court costs of $105.35.
THE REASONS
After making the above factual findings and setting out the statutory provisions, his Honour noted that Mr Burns conceded that but for being a Quandamooka man, Mr Burns would be bound by the Planning Act provisions and the clearing would be prohibited development. His Honour turned to addressing the issues raised by Mr McAvoy.
The first matter he dealt with was a submission by Mr McAvoy which his Honour understood as being based on the effect of s. 13A Acts Interpretation Act 1954 (AIA). Section 13A provides:
13A Acts not to affect native title except by express provision
(1) An Act enacted after the commencement of this section affects native title only so far as the Act expressly provides.
(2) For the purposes of subsection (1), an Act affects native title if it extinguishes the native title rights and interests or it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
His Honour characterised that submission as being:[4]
…that the Planning Act is invalid by virtue of the operation of section 13A… And that the Redland City Plan cannot determine if an activity is assessable under the Sustainable Planning Act because the relevant Acts do not expressly provide that they affect native title… Mr McAvoy contends… that those laws do not apply to Mr Burns when he is exercising his native title rights as a Quandamooka man on Quandamooka land.
[4] Reasons TS1-3.29 to .36. His Honour refers from time to time in his reasons to the Sustainable Planning Act.
His Honour was not persuaded of that submission. He held:[5]
The contention that the Planning Act and the Sustainable Planning Act are invalid does not accord with my understanding of their operation. I’m not satisfied that either [Acts] affect native title rights because there is nothing to suggest that any native title rights have been extinguished, nor could it be said that the Acts are wholly or partly inconsistent with the existence of such rights.
I’m satisfied that at the relevant time, they were validly enacted, and Mr Burns was bound by them…
[5] Reasons TS1-3.36 to .44.
He next turned to the submission that Mr Burns’ acts fell within the cultural activity exemption. His Honour first found that the purpose of the clearing was to provide a building site for a house that Mr Burns intended to build. He rejected Mr Burns’ evidence, characterised by his Honour as being evidence of other purposes:[6]
It is crystal clear that the purpose of the clearing was to provide a building site for a house that Mr Burns intended to build. Later suggestions made by Mr Burns in his evidence that the activity also had the effect of fire hazard reduction and/or mitigation of danger by removing unhealthy and dangerous trees and was in keeping with traditional land use management or that he was taking note of resources for a traditional cultural purpose were disingenuous, and seem to be – to me, to be made with a view to somehow fit his activity into the scope of a traditional cultural activity.
I find as a matter of fact that the clearing of the land conducted on behalf of Mr Burns was conducted for the sole purpose of providing a cleared area upon which he proposed to erect a substantial and permanent house for his daughter. It was never the case that it was cleared with a view to mitigate any fire hazard, nor were the trees cleared as a result of any concern on the part of Mr Burns that they posed a danger to anyone as a consequence of limbs falling from them. The land was not cleared [indistinct] exercise in traditional land management practice. It was never Mr Burns’ intention to utilise the fallen timber as a resource. The timber was stacked into piles with a view to burning it. There is no credible evidence that it was going to be used for or by anyone for any purpose and the notion that the burnt timber would somehow be used to enrich the soil was disingenuous at best and is dismissed as a matter of fact.
Mr Burns gave evidence that he has burnt the piles and there is no evidence given as to what he did after the piles were burnt. The clearing work that Mr Burns had done on the relevant land does not fall within the definition provided by subsection (5) of section 1 of schedule 21 of the Planning Regulation.
[6] Reasons TS1-4.3 to .29.
His Honour then turned to what he characterised as a defence related to s. 211 Native Title Act 1993 (Cth) (the Native Title Act). That section provides:
Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
(1) Subsection (2) applies if:
(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and
(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and
(ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and
(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc. on native title holders
(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:
(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and
(b) in exercise or enjoyment of their native title rights and interests.
Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
Definition of class of activity
(3) Each of the following is a separate class of activity:
(a) hunting;
(b) fishing;
(c) gathering;
(d) a cultural or spiritual activity;
(e) any other kind of activity prescribed for the purpose of this paragraph.
This defence sought to rely on rights conferred by the Determination. His Honour dealt with that submission in this way:[7]
The notion that Mr Burns cleared the land for the purpose of satisfying his personal domestic or non-commercial communal needs in the exercise or enjoyment of his native title rights and interests is simply not supported by the evidence. At the risk of labouring the point, Mr Burns saw some land which he – or that he considered would be a good site for the construction of his daughter’s house, and he contracted a stranger to clear the land. The land was for his or his family’s exclusive use.
The reality that there are any number of clearings on North Stradbroke Island where people live is of no consequence to the activity of Mr Burns. I’m not aware of the genesis of the clearings. I’m not aware if the small communities were a product of a communal decision to establish them, or if the site was chosen by an outside agency and community members moved to the site. There is no admissible evidence before the court that suggests that Mr Burns’ activity was in line with established or recognised cultural practice. I make that finding with all due respect to the witnesses, Dr Cooms and Mr Costello.
[7] Reasons TS1-4.31 to .45.
Finally, his Honour rejected the defence of honest claim of right under s. 22(2) of the Code,[8] which relevantly provides:
[8] His Honour also briefly dealt with a mistake of fact defence not raised on the appeal.
22 Ignorance of the law—bona fide claim of right
(1)Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
(2)But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
His Honour held that the offence created by s. 162 is not “an offence relating to property” and that accordingly, the defence did not arise for consideration. His Honour did not deal further with the issues arising in relation to that defence.
THE GROUNDS OF APPEAL
The appeal was conducted on the basis of the issues raised and developed in the submissions of Mr Burns’ counsel on appeal, Mr Preston. The Council did not oppose that course, though no amended Notice of Appeal was filed. Based on the submissions ultimately advanced, the conviction was challenged on the following grounds.
First, it was submitted his Honour erred in failing to conclude that:
(a)Mr Burns’ clearing was within the scope of the rights he had as a Quandamooka person under the Determination; and
(b)Acts of vegetation clearing which were within the scope of the rights declared in the Determination were not, as a matter of law, capable of comprising an offence against s. 162 Planning Act.
Second, it was submitted that his Honour erred in failing to conclude that Mr Burns’ clearing was exempt clearing within the cultural activity exemption. This ground had two limbs:
(a)The first involved a submission that his Honour erred in his analysis of the evidence, particularly his rulings and analysis of the evidence of Dr Cooms, Mr Costello; and
(b)The second involved a submission that his Honour erred as a matter of law in his construction of the phrase “traditional Aboriginal cultural activity”.
Third, it was submitted that his Honour erred in law in concluding that the offence was not an offence “relating to property” under s. 22(2) of the Code. Further, it was submitted that if the offence is an offence relating to property, then on this appeal, this Court should find that:
(a)Mr Burns’ clearing of the land was done in exercise of an honest claim of right to clear under the Determination; and
(b)Was done without an intention to defraud.
The way in which the first and second grounds were argued did not correlate with the manner in which his Honour dealt with Mr Burns’ submissions in his reasons:
(a)His Honour did not deal with the construction of the Determination in his reasons at all;
(b)His Honour treated evidence given by Mr Burns’ touching on fire hazard and traditional land management as the evidence going to the traditional Aboriginal cultural activity exemption. That evidence was not the focus of argument on that issue on appeal (though it was relied upon in writing); and
(c)His Honour treated the evidence given by Dr Cooms and Mr Costello as going to whether the clearing was within the scope of Mr Burns’ native title rights. On appeal, that evidence was relied upon as relevant to the cultural activity exemption.
I cannot determine whether his Honour correctly apprehended the case put at trial by Mr McAvoy without analysing the written and oral submissions at trial. As the Council took no objections to the manner in which the appeal was conducted by the appellant, it is unnecessary to concern myself with how the case was put at trial on those matters. I intend to deal with the issues as raised on appeal.
THE QUANDAMOOKA DETERMINATION
As noted in paragraph [31] above, there are two distinct issues which arise in relation to the Determination:
(a)The first is whether, on the proper construction of the Determination and in the circumstances in which the clearing occurred, the clearing can be shown to fall within the scope of the rights conferred by that declaration; and
(b)The second is whether, if the clearing falls within the scope of those rights, the clearing is lawful.
Scope of the rights
The Determination
The Determination was a determination of native title in favour of the Quandamooka people in respect of the island. It was a consent determination made under s. 87 Native Title Act (which provides for consent determinations) by Dowsett J on the island on 4 July 2011. The parties to the Determination were numerous but included a representative applicant on behalf of the Quandamooka people, the State of Queensland, the Commonwealth, and the Council. It includes an order by consent that “there be a determination of native title in the terms set out below”. The Determination followed. It is extensive and detailed. It relevantly provided:
(a)By paragraphs 1 to 3:
1.Native title exists in the part of the Determination Area identified in Part A of Schedule 2 and does not exist in the part of the Determination Area identified in Part B of Schedule 2.
2.The native title is held communally by the group of people described in Schedule 1 (“the native title holders”).
3.Subject to paragraphs 4, 5, 6, 7 and 8 the nature and extent of the native title rights and interests, other than in relation to Water, are:
(a)in relation to that part of the Determination Area identified in Schedule 4, the rights to possession, occupation, use and enjoyment to the exclusion of all others;
(b)in relation to that part of the Determination Area identified in Schedule 5, the non-exclusive right to:
(i) live and be present on the area;
(ii) take, use, share and exchange Traditional Natural Resources for personal, domestic and non-commercial communal purposes;
(iii) conduct burial rights;
(iv) conduct ceremonies;
(v) teach on the area about the physical and spiritual attributes of the area;
(vi) light fires for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(vii) be accompanied into the area by non-Quandamooka people being:-
1.people required by traditional law and custom for the performance of ceremonies or cultural activities; and
2.people required by the Quandamooka people to assist in observing or recording traditional activities on the area.
(c)in relation to that part of the Determination Area identified in Schedule 6, the non-exclusive rights to:
(i) be present on the area, including by accessing and traversing the area;
(ii) take, use, share and exchange Traditional Natural Resources and seawater for any non-commercial purpose.
(b)By paragraphs 7 to 10:
7.The native title rights and interests are subject to and exercisable in accordance with:
(a)the Laws of the State and the Commonwealth; and
(b)the traditional laws acknowledged and traditional customs observed by the native title holders.
8.The native title rights and interests referred to in paragraphs 3(b), 3(c), 4 and 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
9.The nature and extent of other rights and interests in relation to the Determination Area (or respective parts thereof) are the rights and interests set out in Schedule 7 (“Other Interests”).
10.The relationship between the native title rights and interests described in paragraphs 3, 4 and 5 and the Other Interests described in Schedule 7 in so far as they validly affect native title, is that:
(a)the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests;
(b)to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to any part of the Determination Area identified in Schedules 4, 5 and 6, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and
(c)the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests to the extent of any inconsistency, but do not extinguish them except in accordance with the law.
(c)By paragraph 13:
Definitions and Interpretation
The words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:
…
“Laws of the State and the Commonwealth” means the common law and the laws of the State and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Live” means to reside and for that purpose to erect shelters and temporary structures but does not include a right to construct permanent structures;
“Traditional Natural Resources” means:
(i)“animals” as identified in the Nature Conservation Act 1992 (Qld);
(ii)“plants” as defined in the Nature Conservation Act 1992 (Qld);
(iii)seaweed, charcoal, shells and resin; and
(iv)any clay, soil, sand, ochre, gravel or rock on or below the surface of the Determination Area.
[underlining added]
(d)By Schedules 1 to 6, for the identification of areas of non-exclusive and exclusive areas covered by the Determination;
(e)By Schedule 7:
Schedule 7
OTHER INTERESTS IN THE DETERMINATION AREA
The nature and extent of the Other Interests in relation to the Determination Area are the Other Interests current at the date of this determination which comprise the following:
…
6.The rights and interests of the State of Queensland and any other person existing under or by reason of the force or operation of:
…
(h)the Integrated Planning Act 1997 (Qld) or the Sustainable Planning Act 2009 (Qld)
8.The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities under the Land Act 1994 (Qld) and any relevant regulations or subordinate legislation made under that Act.
…
13.The rights and interests of Redland City Council:
(a)under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), including undertaking operational activities in its capacity as a local government including feral animal control, weed control, erosion control, waste management and fire management and any other legislation, for that part of the Determination Area within the area declared to be Council’s local government area;
(b)As the:
(i) lessor under any leases which were validly entered into before the date on which these Orders are made and whether separately particularised in these Orders or not;
(ii) grantor of any licences or other rights and interests which were validly granted before the date on which these Orders were made and whether separately particularised in these Orders or not.
[all underlining added]
The parties’ submissions
Mr Preston contended that the clearing was within the scope of the rights articulated in paragraph 3(b)(ii). The argument as ultimately put on appeal, as I understood it, was developed in this way:
(a)Mr Burns’ purpose in clearing the land was to create an area for construction of a three bedroom house for his daughter and her family to live in with the possibly of other family members building on that cleared area as well.
(b)That conduct fell within the scope of clause 3(b)(ii) of the Determination because clearing land for that purpose involved taking… traditional natural resources for… personal or domestic… purposes. In particular:
(i)Clearing the vegetation was to take that vegetation;
(ii)The vegetation cleared comprise traditional natural resources because the trees and bushes taken were plants within the broad definition in the Nature Conservation Act 1992; and
(iii)Clearing for the construction of a private residence for Mr Burns’ daughter was clearing for a personal or a domestic purpose.
Mr Preston recognised that paragraph 3(b)(i) created a difficulty for that argument. Paragraph 3(b)(i), read with the definition of live in paragraph 13 of the Determination, excludes the right to construct a permanent structure for the purpose of living on the native title non-exclusive use area. He submitted, however, that the limitation only applied to Mr Burns at the point at which he began constructing a permanent structure. He submitted that the mere clearing of vegetation for the purpose of a permanent structure did not infringe that prohibition because it did not involve the exercise of any right to construct the house in fulfilment of that purpose. He submitted that Mr Burns’ purpose was conditional upon obtaining necessary building approvals, and that his intention properly to obtain such a building approval meant he was not seeking to rely on the authority of the Determination to carry out the act of construction of the permanent structure.
Mr Preston submitted that until Mr Burns started building his daughter’s house, it remained possible that a humpy might be all that was built on the land, or that some other temporary structure like a caravan might have been all that was placed on the land.
Mr Wylie submitted that:
(a)Mr Burns’ ultimate purpose could not be sundered from his act of clearing.
(b)Clearing vegetation in the manner adopted by Mr Burns was not to take the vegetation within the meaning of paragraph 3(b)(i);
(c)Paragraph 3(b)(ii) had to be read subject to 3(b)(i), that Mr Burns’ purpose was to construct a permanent structure, and that his purpose could not be confined by reason of his intention to obtain a building approval.
Mr Wylie also submitted that the clearing could not be authorised by the Determination because the clearing was not carried out by Mr Burns personally, but by a contractor. He submitted that the right under the Determination relied upon by Mr Burns had to be exercised personally. Mr Preston submitted in reply that on the proper construction of the Determination, the particular right could be exercised by a Quandamooka person or his or her agent.
Analysis
Construing a native title determination
By what principles should the proper construction of the Determination be undertaken? Counsel were unable to identify any authority on that matter. The Determination is a long and detailed document of 83 pages. It contains 11 pages of text, photographic maps, survey maps and references to numerous statutes. Despite those characteristics, it is ultimately an order of a Court, stated in a written form. In the absence of any contrary authority, it seems that it should be construed using the ordinary principles of construction applicable to formal documents. That is, the Determination should be construed objectively by reference to the text used.[9]
[9] Byrnes v Kendle (2011) 243 CLR 253.
In my view, it is also orthodox that in construing the Determination the Court may consider relevant circumstances in which the Determination was made. I have chosen the phrase relevant circumstances deliberately. The kinds of circumstances which may be considered in construing a formal document can differ depending on the nature of that document. Statutes give rise to different considerations than written contracts. In the former case, the Court is determining Parliament’s intention, which has the consequence that interpretation statutes must be applied. In the latter case, the Court is determining the objective intention of the parties to the contract. The Court may therefore consider facts known to both parties and the commercial purpose or object which the contract was intended to secure.
Neither party relied on any matter outside the text of the Determination in advancing their respective constructions. However, it seems to me that it would be permissible, at the least, to consider the statutory context in which the Determination arises and possibly (at least in theory) reasons given by the Court on making of the orders to assist in construction.
Construction of paragraph 3(b)(ii)
Reading paragraph 3(b)(ii) in isolation, one might think that it does authorise the clearing of land for building of a residence by a Quandamooka person. The ordinary meaning of personal is “relating to a particular person or individual”. The ordinary meaning of domestic is “of or relating to the home, household or household affairs”.[10]
[10] Macquarie Dictionary (5th ed, 2009) ‘personal’ (def 1) and ‘domestic’ (def 1).
Whether the clearing of the land fell within the scope of a personal or domestic purpose might be debated. The purpose contemplated might be construed as requiring the purpose to be personal to the person doing the act or to relate to that person’s own domestic affairs (i.e their own home, household or household affairs). That is, the act must relate to Mr Burns specifically, rather than his daughter. However, I do not think that the words of the paragraph should be read so narrowly in the absence of some textual indicator to that effect. In any event, it would be arguable, even on that basis, that the clearing did relate to Mr Burns’ household where the person to benefit was his daughter.
One notable (and odd) omission from paragraph 3(b)(ii) is any express limitation on the rights conferred by that paragraph to purposes which are related to traditional activities. The phrase Traditional Natural Resources invokes tradition, but the definition of that phrase is so broad as to cover anything in the animal and plant kingdoms and most of the soil and its components as well. The clearing of land by Mr Burns for the purpose of constructing a home for his daughter (and grandchildren) seems to me to fall within the ordinary meaning of a domestic purpose (at the least) as it appears in paragraph 3(b)(ii).
Further, clearing of vegetation falls within the scope of taking Traditional Natural Resources. The Council submitted that to clear vegetation in the manner Mr Burns has done was not to take those plants. However, clearing vegetation seems to me to fall within the ordinary meaning of take, in the sense of getting into a person’s possession or control. No contention was advanced that the meaning should be read down in the context in which it appears.
However, paragraph 3(b)(ii) cannot be read in isolation from the balance of the Determination. Like all formal legal texts, the Determination must be read as a whole. All the more so for paragraph 3(b)(ii) which is not expressly limited in its scope to traditional purposes. There are three parts of the Determination which in my respectful view impact on the proper construction of paragraph (3)(b)(ii):
(a)The introductory words in paragraph 3(b);
(b)Paragraph 8; and
(c)Paragraph 3(b)(i).
The effect of the introductory words is to condition all the rights conferred by 3(b) as non-exclusive rights (see [37](a) above). Mr Burns’ purpose in taking the vegetation, however, was to construct a house for his daughter’s family to live in. The inevitable inference is that her family would have exclusive rights to occupy that part of the land on which her house was to be built, and perhaps the whole of the cleared area (there was a suggestion in evidence that the area cleared not required for the house was to be the garden). To that extent, the purpose went outside the scope of the rights conferred under paragraph 3(b) of the Determination. That conclusion remains correct even if one considers the possibility that other members of Mr Burns’ family might build houses on the land.[11] However, those other houses would presumably also be for exclusive occupation of those family members.
[11] Mr Burns’ evidence on his intention to clear land for other family members to build on was inconsistent throughout the trial. On my analysis of the evidence, it was at best a vague possibility in Mr Burns’ mind which was not material in his decision making.
The prohibition on exclusive use of any part of the Determination area covered by paragraph 3(b) (in which the land was located) is reinforced by express exclusion of exclusive use rights in paragraph 8 of the Determination (see paragraph [37](b) above).
Paragraph 3(b)(i) further reinforces that conclusion. It expressly deals with the rights to “live and be present” in the non-exclusive area. Those rights are expressly limited by the definition of live to exclude constructing a permanent structure for the purpose of residing on the area. Mr Burns’ purpose was to build a permanent structure in which his daughter’s family could reside on the land. That purpose was directly inconsistent with the express constraint in 3(b)(i), which is a more specific provision than 3(b)(ii) directed at prohibiting exactly what Mr Burns intended. Paragraph 3(b)(ii) must be read subject to that provision.
To the extent further analysis is needed, the construction which limits 3(b)(ii) is consistent with the express conferral of plenary rights over the Schedule 4 area. The contrast between 3(a) and 3(b) tends also to support the construction of 3(b)(ii) as not extending to taking vegetation for the purpose of constructing a house for Mr Burns’ daughter, or any other relatives for that matter.
That leaves two issues to be resolved.
The first is Mr Preston’s submission that Mr Burns’ clearing of land for the purpose of building a house can be severed into two parts, the first being the act of clearing the land and the second being the purpose to construct the residence. This severance of his purpose into the clearing step and the building step was said to be justified by Mr Burns’ own recognition that he would have to obtain a development approval for the building works before commencing those works. As I understood it, Mr Preston submitted that the purpose for the first step could then be characterised as being authorised by the paragraph 3(b)(ii) because Mr Burns might have been clearing so persons could live on the land within the meaning of 3(b)(i) in shelters and temporary structures, or that that was possible unless and until he commenced building the house.
I reject that argument. Paragraph 3(b)(ii) confers the rights by reference to the purpose. Purpose is a state of mind. Mr Burns’ purpose was to clear the land to build a house. It was not his purpose to make space for a shelter or temporary structure. It is by reference to his purpose that his acts under s. 3(b)(ii) must be considered, not some other possible consequence of his clearing. Further, the submission cannot be reconciled with the evidence. There is no evidence that a shelter or temporary structure could possibly require clearing of 2400m2 and the suggestion is inherently improbable. Mr Burns’ ultimate purpose dictated his approach to the nature and extent of the clearing.
Further, to the extent it is maintained on the appeal, I also reject the suggestion that his purpose at the time of clearing was for fire management (except to the limited extent that he wanted to clear all the vegetation around the planned house to better effect his purpose by providing a buffer against fire which might threaten the house). His Honour rejected that factual proposition at trial, and it was a finding which he was in a more advantageous position that this Court to make. I agree with his conclusion as I explain below from paragraph [219].
The agency issue
The last issue relating to construction of the Determination is the agency issue. This contention was made by Council on both the Determination and the cultural activity exemption. It raises distinct issues for the Determination because the Determination articulates in a final manner the content of native title rights for the Quandamooka people: see [165] below.
It is uncontentious that Mr Burns did not clear the land himself. He retained a contractor to do so. The only basis upon which this could be authorised under the Determination is if the Determination permitted Mr Burns to exercise rights under the Determination (at least on the non-exclusive use area) by bringing a non-Quandamooka agent onto non-exclusive use land. For the following reasons, it did not.
Whether Mr Burns could exercise rights under paragraph 3(b) of the Determination by an agent is a matter of the proper construction of the Determination. At common law, an agent may do anything that his or her principal may do other than acts which are required as a matter of law to be done personally by the principal. The current edition of Bowstead & Reynolds on Agency states as follows (footnotes omitted):[12]
Article 6
[12] Peter Watts KC and F.M.B Reynolds KC, Bowstead & Reynolds on Agency (Sweet & Maxwell, 23rd ed, 2023), p. 62 [2-018] (still contributed to, astonishingly, by Professor Francis Reynolds, who started the job in 1968).
Acts Which May be Done by Means of an Agent
2-018 An agent may execute a deed, or do any other act on behalf of the principal, which the principal might personally execute, make or do; except for the purpose of executing a right, privilege or power conferred, or of performing a duty imposed, on the principal personally, the exercise or performance of which requires discretion or special personal skill, or for the purpose of doing an act which the principal is required, by or pursuant to any statute or other relevant rule, to do in person.
In my view, that principle is not applicable in construing the Determination. While the Determination authoritatively recognises and identifies the content of the native title rights of the Quandamooka people, those rights are not themselves common law rights. They are rights arising outside the common law, but which are recognised by it and articulated by the Determination.[13] I can see no principled basis for the automatic application of a common law principle of agency to native title rights generally, nor to the native title rights of the Quandamooka people specifically.
[13] Fejo v Northern Territory (1988) 175 CLR 96, [46].
However, even if that principle was adopted as the starting point for the construction of the Determination, I consider that the Determination precludes the application of that proposition to doing of acts authorised by paragraph 3(b). I refer to paragraph 3(b)(vii) (see [37](a) above). Read in the context of paragraph 3(b), that paragraph confers express authority on Quandamooka people to be accompanied by non-Quandamooka people into non-exclusive parts of the native title area in two specific circumstances. Neither of those circumstances arose on the evidence.
The express provision of authority for third parties to go on the non-exclusive use area for limited purposes necessarily excludes, in my view, the implication of authority to permit others to come on that area for other purposes or in other circumstances. In particular, it excludes the implication of any authority in Mr Burns to invite the contractor onto the non-exclusive use native title area, even if he was authorised by paragraph 3(b) to clear the land himself. Mr Burns acted outside the scope of the rights conferred by the Determination in clearing the land by a contractor even if that was conduct which he could have engaged in himself.
Conclusion
Mr Burns’ clearing was not authorised by the Determination.
Does the Determination provide an answer to the charge?
Even if Mr Burns’ clearing was authorised by the Determination, that is not of itself sufficient to answer the charge. It is also necessary that the authorisation conferred by the Determination provides an answer to the charge as a matter of law.
The offence contains an absolute prohibition. Further, its extensive provisions defining the scope of “prohibited development” contain many exclusions and limitations. However, no exclusion or limitation is provided for acts authorised by a native title determination. However, that is not the end of the matter. Native title rights are the subject of specific provisions which impact on the proper construction of legislation. Mr Burns relied on s. 13A AIA and s. 211 Native Title Act.
Section 13A provides:
13A Acts not to affect native title except by express provision
(1)An Act enacted after the commencement of this section affects native title only so far as the Act expressly provides.
(2)For the purposes of subsection (1), an Act affects native title if it extinguishes the native title rights and interests or it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
Section 211 Native Title Act provides:
211 Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
(1)Subsection (2) applies if:
(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and
(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and
(ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and
(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc. on native title holders
(2)If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:
(a) for the purpose of satisfying their personal, domestic or non‑commercial communal needs; and
(b) in exercise or enjoyment of their native title rights and interests.
Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
Definition of class of activity
(3)Each of the following is a separate class of activity:
(a) hunting;
(b) fishing;
(c) gathering;
(d) a cultural or spiritual activity.
The application of both provisions to the legislative scheme which defines the scope of the offence is a complex question which gives rise to difficult and novel issues. It was submitted that his Honour misapprehended Mr McAvoy’s submission as to how the Determination was effective to provide an answer to the offence under s. 162 Planning Act. That seems correct, but the issue is moot. The question of whether and how clearing authorised under the Determination could provide an answer to the charge only arises if Mr Burns’ acts were authorised by the Determination. As they were clearly not so authorised, it is unnecessary to resolve this difficult issue.
CULTURAL ACTIVITY EXEMPTION
Proper construction
At trial, and again on appeal, Mr Burns submitted that the clearing of the land was exempt clearing work because it was within the scope of the cultural activity exemption. That phrase is not defined in Planning Act.
Schedule 1 AIA defines Aboriginal tradition as follows:
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.
Schedule 1 refers to s. 36 which provides that in an Act, a term defined in schedule 1 has the meaning stated in that schedule. The Planning Regulations does not use the phrase Aboriginal tradition, so strictly speaking, there is no statutory warrant for adopting the definition of Aboriginal tradition. However, it does provide a useful perspective on the likely overall object of the phrase.
The phrase does appear in statutes in New South Wales dealing with prohibitions concerning fauna, flora and land.[14] However, I could locate no case dealing with the phrase. It falls to be construed in this case, so far as I can determine, for the first time. I was referred by counsel to cases dealing with the meaning of similar words and phrases. Of particular assistance is Stevenson v Yasso [2006] 2 Qd R 150. In that case, Mr Yasso relied on traditional fishing rights as an answer to a charge of possessing a commercial net (used for dragging for fish) without an appropriate licence in breach of s. 54 Fisheries Act 1944 (the Fisheries Act). Mr Yasso did not hold an appropriate license. He relied on an express provision that an Aborigine may take fisheries resources “under Aboriginal tradition”. Each member of the Court expressed a view as to the meaning of that phrase. After referring to the AIA definition, President McMurdo said (footnotes omitted):[15]
The definition of “Aboriginal tradition” in the Acts Interpretation Act 1954 does not require the establishment of a native title under the common law as described in Mabo [No. 2] but refers to “the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people”. The ordinary meaning, consistent with the dictionary definition of “tradition”, is “the handing down of statements, beliefs, legends, customs, etc., from generation to generation, especially by word of mouth or by practice”. In Chapman v. Luminis Pty Ltd (No. 4) von Doussa J. accepted that the word “tradition” in such a context required a degree of antiquity, perhaps more so than the words “observances, customs or beliefs” but that those words nevertheless carry with them the notion that there has been a handing down from generation to generation in accordance with the understanding of Aboriginal lore and practice.
[14] Most relevantly, schedule 5A s. 18 Local Land Services Act 2013 (NSW), which creates an exception to vegetation clearing regulations for “Clearing native vegetation for a traditional Aboriginal cultural activity”.
[15] Stevenson v Yasso [2006] 2 Qd R 150, 165 [47].
Justice McPherson referred to the AIA definition and then considered the date to which a practice must be traced to be an Aboriginal tradition within the meaning of the section. He adopted 1828, as the year of the Australian Courts Act 1828 (UK). The key issue for his Honour was not whether there was an Aboriginal tradition of fishing, but what the content of that tradition was. After reviewing the evidence, his Honour found that it was well short of proving:[16]
… “a system of rules” (Mason v. Tritton (1994) 34 N.S.W.L.R. 572, 598) that were being observed by an identifiable group of people. And, even if “system” may be abstracting the matter too much, there was no evidence of “bodies of normative rules” which have in fact “given rise to rights and interests” (Yorta Yorta v. Victoria (2002) 214 C.L.R. 422, 442) in relation, in this case, to fishing or drag net fishing, under Aboriginal tradition, whether from 25 July 1828 or any other date more than 30 years ago. Here, as in Mason v. Tritton (1994) 34 N.S.W.L.R. 572, 594, there is no evidence at all to show what quantity of fish might be taken, or the purposes for which it could be taken.
[90] In saying this, I am conscious that the decisions referred to, and others of similar kind, have been concerned with native title rights and interests recognised either at common law or under the Native Title Act 1993 (Cth). However, in Yorta Yorta v. Victoria (2002) 214 C.L.R. 422, 444, specifically with reference to “traditional” in s. 223(1)(a) of that Act, the High Court said:
“A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act ‘traditional’ carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‘traditional’ laws and customs”.
By s. 223(2) of the same Act, the expression rights and interests in s. 223(1) includes fishing rights and interests. Inconsistency in the meaning of “tradition” in s. 14(1) of the Fisheries Act 1994 with s. 223 would spell invalidity for s. 14(1) of the State Act under s. 109 of the Constitution. A generation is usually computed at 30 years (Shorter Oxford English Dictionary). Thirty years of usage does not prove a tradition or usage that has passed from generation to generation.
[91] With the qualification that, as I have suggested, the “Aboriginal tradition” in s. 14(1) need only be traced back to the application of English law to what is now Queensland in 1828, the foregoing statement applies in the present case. There is no sufficient evidence here to demonstrate an Aboriginal tradition of using 50 m long drag nets to catch fish in 1828 or at any time prior to 30 years ago, and none at all to show that monofilament nets of the dimensions here in question (50 m with a two inch mesh size) were ever used as part of that tradition; or what quantities and for what purposes fish might be taken under that tradition.
[bold in original]
[16] Ibid 176.
Fryberg J rejected the proposition that the phrase Aboriginal tradition in the statute should be limited in scope to native title rights which could be established at common law (consistent with the common position of counsel in this appeal), though his statements were expressly obiter. Referring to the AIA definition, he said:[17]
…the tradition referred to in that section need not find its expression in or be sanctioned by rules; need not be traced back to any particular year (whether 1788 or 1828); and, most importantly, need not give rise to a right or interest or any kindred concept, or even be recognised by the common law. Were it otherwise, the definition in s. 36 would resemble that in s. 223 of the Native Title Act 1993. I reject Mr Preston’s submission.
[141] Nothing is to be gained by attempting here an a priori enumeration of what must be proved to establish the tradition defined in s. 36. Indeed, any such attempt must carry a high risk of error. The matter is best worked out in the context of actual cases.
[17] Ibid 192.
Counsel cited several authorities where Courts were grappling with a similar but not identical issue. Many concerned native title rights, which have particular limitations and conditions. I do not think that this judgment is assisted by proliferating citations of passages from such judgments. My reading of them supports the conclusion which I think flows from Yasso, which is that the phrase traditional Aboriginal cultural activity ought to be construed by reference to the ordinary meaning of those words.[18]
[18] See Macquarie Dictionary (5th ed, 2009) ‘culture’ (def 1) and ‘tradition’ (def 1).
On that approach, an activity will be a traditional Aboriginal cultural activity if it is an activity which is carried on by a specific group of Aboriginal people (here Quandamooka people) and:
(a)It is an activity which is carried on according to some accepted system of rules, practices or conventions common to that group (a cultural activity);
(b)That system of rules, practices and conventions has been handed down to current group members from earlier generations (a traditional activity); and
(c)Is a cultural activity unique to the culture of that group, as opposed to being a cultural activity carried on by the community or parts of the community which are not Quandamooka people (an Aboriginal activity).
The above articulation of the requirements for an activity to meet the statutory description do not track the requirements for establishing native title at law or under the Native Title Act. Neither party submitted that the statutory test should be confined in that manner, and I agree. Native title rights are confined (they concern rights which relate to rights in, over and in respect of land[19]) and are subject to well-known conditions (proof of pre-sovereignty existence being the principal condition). I think it fair to infer that if Parliament intended to confine the exemption in the Planning Regulations by reference to native title rights, it would have said so.
[19] Freddie v Northern Territory [2017] FCA 867, [18]; Akiba v Commonwealth (2013) 300 ALR 1, [45].
Mr Wylie submitted that the Determination would nonetheless be a good place to start in considering the existence of a traditional Aboriginal cultural activity. As a general starting point, that is correct. However, the Determination does not define the boundaries of the activities which might fall within the scope of the cultural activity exemption. An activity for exercise of a native title right would likely be a traditional Aboriginal cultural activity, but not all such activities will necessarily be native title rights.
The construction in paragraph [78] raises some practical issues.
First, how far back must a cultural activity be traced for it to be traditional? I do not consider that it has to be 1788 or 1828. Like Justice Fryberg in Yasso, I see no warrant for imposing any particular date by reference to the radical title of the Crown in Queensland or any other fixed date. However, the authorities support the conclusion that for a cultural activity to be traditional, it must have been carried on in a group for a sufficient period to have become accepted as an established cultural activity by reason of that history of behaviour. A generation is insufficient according to Justice McPherson in Yasso. It seems to me that for a cultural activity to be intergenerational it requires more than two generations. On the other hand, cultural activities reaching back to early settlement will plainly be traditional. However, drawing the line in any particular case as to what qualifies as traditional must be determined on a case by case basis having regard to the nature of the activity and its history in the relevant group.
Second, I respectfully disagree with Justice Fryberg’s suggestion that Aboriginal tradition does not require some established system of rules, practices or conventions shared by the group in relation to an activity or belief. In my view, the authorities support the proposition that for an activity to be a cultural activity of a group of people, it must have some content (be it rules, practices or conventions) which is shared by the group.[20] That is the essence of culture in its ordinary meaning. If there are no shared norms around a particular activity, it is just an activity that people who are part of a group carry on, not a cultural activity of that group.
[20] See Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9, [199] (Charlesworth J).
Third, a cultural activity does not have to remain unchanged over time for it to be a traditional cultural activity. The manner in which a cultural activity is carried out may change to adjust for modern conditions in which it is carried out. However, at some point the manner of carrying out the activity may be so fundamentally altered as to sunder the link with the traditional source.[21]
Evidence
The issues on appeal
[21] Yanner v Eaton (1999) 201 CLR 351, [68].
At trial, evidence was called from Dr Cooms and Mr Costello to make out the traditional Aboriginal cultural activity exemption. Both witnesses gave evidence that they were Quandamooka people. At trial, the evidence of the witnesses was submitted to be relevant and admissible because it comprised evidence from Quandamooka people as to their understanding of the traditional cultural activities of Quandamooka people.[22]
[22] TS3-55 and TS4-15.36 to 4-18.39.
The appellant raises two distinct but related grounds of appeal in relation to this evidence:
(a)First, that his Honour wrongly ruled that evidence inadmissible for the purpose of proving the existence of traditional Quandamooka cultural activities before the witnesses were called, and that as a consequence, Mr McAvoy did not lead evidence from them (or perhaps led incomplete evidence from them) out of respect for his Honour’s ruling. It is submitted that as a result, the trial miscarried; and
(b)Second, that his Honour erred in treating that evidence as inadmissible on the cultural exemption issue.
As to the first issue, Mr Preston relied on the statements from his Honour in discussion with counsel prior to Dr Cooms giving evidence to the effect that Dr Cooms could not give evidence about the legality or cultural appropriateness of Mr Burns’ conduct other than by giving expert evidence.[23] However, the transcript also shows that Mr McAvoy nonetheless asked questions of both witnesses directed at obtaining evidence of Quandamooka clearing and settlement practices on the island without any material objection from Mr Wylie or intervention from his Honour.
[23] See especially TS4-16.19 to 17.33.
It was submitted by Mr Preston that it could nonetheless be inferred that Mr McAvoy did not lead full evidence on the subject because of his Honour’s indication of his views before the witnesses were called. Having read the whole of the evidence of both witnesses, I draw no such inference. Both witnesses were asked questions about land use practices of Quandamooka people on the island, reaching back to at least their grandparents’ time. They also appeared to exhaust their evidence on the subject because Mr McAvoy examined both witnesses until he chose to close their evidence in chief. On my reading of the examination (there was no cross examination), Mr McAvoy decided to lead the evidence available to him that was relevant to the cultural exemption issue until there was an objection to a particular question. None came, so he continued. In my respectful view, that was the correct course for counsel to adopt in the circumstances. Mr Burns was not denied a fair opportunity to lead relevant evidence on the basis contended for, nor was the trial unfair in that respect. I reject this ground of appeal.
As to the second point, his Honour dealt with the evidence of Dr Cooms and Mr Costello in his reasons as follows:[24]
The next defence raised by Mr Burns relates to section 211 of the Native Title Act. The notion that Mr Burns cleared the land for the purpose of satisfying his personal or non-commercial communal needs in the exercise or enjoyment of his native title rights and interests is simply not supported by the evidence. At the risk of labouring the point, Mr Burns saw some land which… he considered would be a good site of the construction of his daughter’s house, and he contracted a stranger to clear the land. The land was for his or his family’s exclusive use.
The reality that there are any number of clearings on North Stradbroke Island where people live is of no consequence to the activity of Mr Burns. I’m not aware of the genesis of the clearings. I’m not aware if the small communities were a product of a communal decision to establish them, or if the site was chosen by an outside agency and the community members moved to the site. There is no admissible evidence before the court that suggests that Mr Burns’ activity was in line with established or recognised cultural practice. I make that finding with all due respect to the witnesses, Dr Cooms and Mr Costello.
[24] Reasons TS1-4.30 to .45.
Mr Preston’s argument on this issue had two steps:
(a)He submitted that his Honour’s comment necessarily involved rejecting as inadmissible the evidence which Dr Cooms and Mr Costello gave on traditional Quandamooka cultural activities which related to clearing and home construction on Stradbroke; and
(b)He submitted that such rejection was wrong because their evidence was admissible on that issue.
Principles
I want first to deal with the principles informing the admissibility of evidence of traditional cultural activities. A good starting point is Malone v State of Queensland (No. 5) [2021] FCA 1639,[25] cited by Mr Preston. At [195] to [196], Reeves J stated:
[25] I could not locate the passage relied upon by Mr Preston at paragraph 18 of his amended submissions, but the quoted passage is consistent with his submission.
[195] The repeated references in the authorities to intergenerational transmission of knowledge about traditional laws and customs underscore the critical importance of Aboriginal evidence in any native title claim (see, for example, Yorta Yorta HC at [46], [59], [79], [87] and [112] and Ward FC at [243]). In Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367, North J explained the importance of this kind of evidence in the following terms (at [40] and [42]):
40 The present case illustrates an important feature about native title litigation, particularly in respect of issues of connection. From about 20 years of experience of native title litigation it has been rightly recognised by the Court that the primary source of evidence of the connection of Aboriginal people to land is evidence from those people themselves. That is partly because the laws and customs which govern the acquisition of rights and interests in land has not generally been written down. The tradition is oral. The rules are handed down from generation to generation. Old people have the responsibility in Aboriginal culture of explaining the rules governing their people by educating younger people. Some of that education is imparted through ritual in ancient ceremonial practice. Some is imparted more informally by sitting and speaking and interacting with old people over many years. Knowledge acquired of the laws and customs is highly valued among Aboriginal people. Deep knowledge of the rules governing the society and particularly stories about the creation of the country is a mark of authority among the people.
...
42 Perhaps most significantly for non-Aboriginal judges, the oral evidence of Aboriginal people is usually more able to convey the nature of the spiritual beliefs from which the laws and customs derive and which bind the people to the land. The way in which such evidence is given often displays the extent to which the tradition is both deeply held and is a living tradition governing the everyday lives of the witnesses.
(Bold added)[196] In Sampi SJ, French J said of this kind of evidence that it was “of the highest importance. All else is second order evidence” (at [48]). On appeal, the Full Court agreed with this observation (see Sampi FC at [57] per North and Mansfield JJ). In this respect, it is worth adding that the failure to draw an inference about a fact such as continuity does not usually reflect adversely on the authenticity of the evidence given by the Aboriginal witnesses for the claimants (see, for example, CG (Deceased) on behalf of the Badimia People v State of Western Australia (Badimia)[2015] FCA 204 at [431] and [484] per Barker J).
Malone, and the cases cited involved native title proceedings under the Native Title Act conducted in the Federal Court. There are statutory provisions which facilitate the tender of such evidence as proof of traditional (i.e. historical) cultural practices and activities. Section 82 Native Title Act gives the Federal Court discretion to dispense with the rules of evidence in native title proceedings in that Court. Section 72A Evidence Act 1995 (Cth) provides that the hearsay rule does not apply to a representation about traditional laws and customs of Aboriginal and Torres Strait Islander groups. Section 78A of the same Act provides that the opinion rule does not apply to an opinion about traditional laws and customs of Aboriginal and Torres Strait Islander groups. None of those provisions apply to the proceedings before this Court.
However, it does not appear that the lack of statutory basis to admissibility for evidence from Aboriginal people as to the content of traditional cultural practices means that such evidence is inadmissible. It appears such evidence is admitted as an evolution of the reputation exception to the hearsay rule. The law has been stated as follows:[26]
[26] See Richard H. Bartlett, Native Title in Australia (LexisNexis Australia, 5th ed, 2023) 225-6.
13.102 The special circumstances and problems were referred to by Olney J in Yarmirr v Northern Territory (1998) 82 FCR 533; 156 ALR 370 (Croker Island case):
Any proceeding in which the Court is required to make findings as to traditional laws and customs practised more than 150 years ago must necessarily rely upon evidence other than that of the personal observations of witnesses. Similarly the proof of genealogical connections to ancestors living at or prior to European settlement cannot be proved by reference to official records. To a large extent some of the most important issues before the court can only be resolved upon evidence which in other circumstances may be regarded as hearsay.
The ‘disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend on oral histories and accounts’ was emphasised by Lee J in Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 ALR 483 at 504. Justice Lee further declared at 504 that ‘rules of evidence applied to the proceeding must be cognisant of the evidentiary difficulties faced by Aboriginal people in presenting such claims for adjudication and the evidence adduced must be interpreted in the same spirit, consistent with the due exercise of judicial power’.
13.103 Justice Blackburn in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (SC(NT)) held that the plaintiff might prove their case in part by evidence within the ‘reputation’ exception to the hearsay rule. He explained that ‘the application of the rule of evidence to the proof of novel facts, in the context of novel issues of substantive law, must be in accordance with the true rationale of the rule, not merely in accordance with its past application to analogous facts’. The reputation exception to the hearsay rule is of fundamental importance in the proof of native title. Justice Blackburn cited Phipson on Evidence:
Declarations made by deceased persons of competent knowledge… are admissible in proof of ancient rights of a public or general nature.
Justice Moynihan in Mabo v Queensland [1992] 1 Qd R 78 (Mabo (No 1)) cited Blackburn J with approval in the determination made by him pursuant to the reference by the High Court. Justice Olney reached similar conclusions in the Croker Island case as to the admission of evidence in the form of ‘oral history’ and ‘matters recorded by ethnographers and other observers’. The determination made by Olney J was upheld by the High Court on appeal in Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113; [2001] HCA 56.
Justice Blackburn in Milirrpum was cited with approval in De Rose v South Australia [2002] FCA 1342 by O’Loughlin J. Justice O’Loughlin allowed ‘Aboriginal witnesses to give evidence of their beliefs that are based on what they have been told by members of the older generations who are now dead or are otherwise unable to give direct evidence’.
His Honour answered that question in favour of the narrower interpretation. He said (at 574-575):
It is therefore necessary to give to s. 22 the narrower interpretation, holding that it applies only to offences in which the causing of another to part with property or the infringing of another's rights over or in respect of property is an element. So understood, does s. 22 apply to any offence created by s. 54 of the Act?
His Honour answered that question in the negative and did so despite the vesting of property in fauna in the Crown. The application of this reasoning to the offence created by s. 162 Planning Act is compelling. It could be argued by analogy that s. 162 is concerned not with protecting the Crown’s or any other person’s rights over or in respect of vegetation, but rather to protect the orderly carrying out of development in the State. That characterisation of the offence is consistent with the objects of the Planning Act and with the submission by the Council. However, Brennan J’s analysis was not adopted by any other Justice in Walden.
Justice Deane came to the opposite conclusion on whether there was an offence relating to property (at 580) (footnotes omitted):
In Thomas v. The King, it was said by Dixon J. that s. 22 of the Code states the common law "with complete accuracy". The comprehensiveness of his Honour's statement is, however, open to question: see, e.g., per Philp J. (E. A. Douglas J. agreeing), Anderson v. Nystrom. Be that as it may, the section plainly had its origin in, and is to be construed in the context of, the common law: see the Explanatory letter from Sir Samuel Griffith to the Attorney-General which accompanied the Draft of a Code of Criminal Law (1897), the note to s. 24 of the Draft Code and per Stable J., Olsen v. Grain Sorghum Marketing Board. It is arguable that, viewed in the context of the common law, the reference in the second paragraph of s. 22 to "an offence relating to property" should be narrowly construed as referring to an offence involving an element of interference by the person charged with rights, be they proprietary or possessory, of another in relation to property (cf. per Virtue J., Pearce v. Paskov and note the grouping of offences of this kind in various chapters of Pt VI of the Code under the general classification of "Offences relating to property"). On balance however, it seems to me that the reference in s. 22 to "an offence relating to property" should not be so narrowly construed and that the offence of which the appellant was convicted, namely the offence of keeping certain property without any relevant statutory licence or other authority, is properly to be described as such an offence for the purposes of that section.
[underlining added]
His Honour came to that conclusion by rejecting the narrow construction focused on the elements of the offence but did not articulate principles of construction which could be applied in considering the statutory limitation in other statutory contexts.
Dawson J did not advert to whether the offence was an offence relating to property. He decided the appeal on the question of whether Mr Walden’s belief could amount to an honest claim of right within the scope of s. 22(2).
Justice Toohey, although dissenting in the result, did consider the issue and agreed in Justice Deane’s conclusion. His Honour relevantly observed (at 598):
All members of the Full Court accepted that bustards were "property" within s. 22. They did so because of s. 7 of the Fauna Conservation Act. Sub-section (l) of that section reads:
"All fauna, save fauna taken or kept during an open season with respect to that fauna, is the property of the Crown ...."
Furthermore, in its reference to an "open season", s. 7(1) recognizes that ownership of fauna may not be confined to the Crown. The definition of "property" in s. 1 of the Code is applicable: "The term 'property' includes everything, animate or inanimate, capable of being the subject of ownership."
After citing Pearce v Paskov, and rejecting the narrow view stated in that case, his Honour concluded (footnotes omitted) (at 599):
With respect to his Honour, there is no warrant for reading down s. 22 in this way. Whenever an offence can be truly said to relate to property, s. 22 is capable of applying: cf. Reg. v. Hobart Magalu. An offence under s. 54 of the Fauna Protection Act is such an offence because it relates to the taking or keeping of something which answers the description of property.
[underlining added]
Justice Gaudron first noted that Pearce presented a narrow view of the phrase and that a broader view was stated in the PNG decision of R v Hobart Magalu [1974] PNGLR 188 to the effect that the defence was available where the offence (there, forging and uttering) related to property within the meaning of s. 1 of the Code. Her Honour observed that the phrase “as for an offence relating to property” had no clear function and, so far as I can tell, disregarded it as creating any narrowing of the scope of the defence by stating (footnotes omitted) (at 599-600):
Nevertheless the act or omission must be "with respect to any property". Thus in Olsen v. Grain Sorghum Marketing Board; Ex parte Olsen it was held that buying sorghum from a person other than the Grain Sorghum Marketing Board was not an act done with respect to property within the meaning of s. 22. The claim asserted by the appellants was one that they could buy sorghum from any person because they believed that the statute in question did not apply to the transaction.
The end result is that two Judges (Deane and Toohey JJ) agreed that the offence in that case was an offence relating to property on a broader construction of that phrase, albeit they came to differing conclusions on the other element. In my view, Gaudron J can be added to create a majority of support for the proposition that Pearce is too narrow and that the fauna offence in Walden was an offence relating to property.
Pearce was considered by the Western Australian Court of Appeal in Molina v Zurich [2001] WASCA 337. Malcolm CJ (with whom Templeton J agreed and see McKechnie J to the same effect at [97]) held that Pearce had been over-ruled by Walden, citing the passages set out above from Deane, Toohey and Gaudron JJ. The Court concluded that a broad construction of “relating to property” should be adopted and that full effect ought to be given to the definition of property in the WA Code. McKechnie J put it this way: “s. 22 should be given its literal and broad affect”. On the facts of that case, the Court concluded that the offence of “without lawful authority, remaining on premises” was one which related to property.
The Queensland Court of Appeal adopted the same interpretation of Pearce and approved the approach in Molina in Stevenson v Yasso. As already explained, Mr Yasso was charged under s. 84 Fisheries Act with unlawfully possessing commercial fishing apparatus (a form of net) while not the holder of an authority. Mr Stevenson relied on the awkwardly worded s. 14 of the Act which provided that an “Aborigine may take, use or keep fisheries resources… under Aboriginal traditional”. He said that he was a Darumbul man and that he was authorised by a Darumbul person to fish with a net consistent with Darumbul cultural tradition.
One issue which arose was whether, if Mr Yasso was not excused by s. 14 of the Act, could he nonetheless rely on s. 22(2) of the Code, based on his belief that he was authorised to fish with the net by a Darumbul elder and therefore was entitled to be in possession of the net, despite s. 84 of the Act. McMurdo P considered Walden and Molina and adopted the analysis of Walden in Molina and then concluded (at [67]):
All this suggests that whilst the law as to the operation of s. 22 Criminal Code may not be entirely settled, the issue of Mr Yasso’s entitlement to possess the net in the exercise of an honest claim of right under s. 22 Criminal Code was raised on the evidence. It must follow from the magistrate’s conclusion that Mr Yasso was acting in the traditional way of an Aborigine in his possession of the net, that the magistrate was also satisfied that the prosecution had not disproved beyond reasonable doubt that Mr Yasso was in possession of the net whilst acting under an honest claim of right by way of Aboriginal tradition under s. 14 of the Act. That conclusion also supports the orders I propose.
McPherson JA also dealt with the issue. He held that the offence under s. 84 Fisheries Act was an offence relating to property, relying on the broad definition of property in s. 1 of the Code. However, his Honour cavilled at the approach to this issue in Molina approved in McMurdo P’s judgment of marshalling majority and dissenting judgments to a majority on construction of “relating to property” generally and in the context of the facts in Walden in particular. He observed (at [103] to [104]:
Some reliance has been placed by the President in her reasons on the decision of the Full Court of Western Australia in Molina v. Zaknich (2001) 24 W.A.R. 562, in determining the ratio decidendi of the High Court in Walden v. Hensler (1987) 163 C.L.R. 561. In doing so, their Honours arrived at a ratio by combining the reasons of the two minority dissenting Justices, who were Toohey and Gaudron JJ., with those of Deane J., who was one of the majority consisting of Brennan C.J., Dawson J. and Deane J. With great respect, this is, I think, not a legitimate course to follow. In Federation Insurance Ltd v. Wasson (1987) 163 C.L.R. 303, 314, Mason C.J., Wilson, Dawson and Toohey JJ. agreed in saying:
“Certainly, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment”.
And in Garcia v. National Australia Bank Ltd (1998) 194 C.L.R. 395, 417, Kirby J. said “the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be”. I know that in Jones v. Bartlett (2000) 205 C.L.R. 166, 225, Gummow and Hayne JJ. have since said that, where a binding authority cannot be extracted from the majority judgment, a dissenting judgment may “deserve respectful consideration”. But in Walden v. Hensler, the majority was unanimous in deciding, unlike the minority, that s. 22(2) afforded the appellant with no ground of exemption or exculpation in respect of the offence he had committed under s. 54(1)(a) of the Fauna Conservation Act 1974 of taking or keeping fauna. Their conclusion that, as a matter of sentencing discretion under s. 657A of the Code, the conviction should not be recorded did not affect their decision that it should stand as a conviction according to law.
I do not consider, however, that the decision or the reasoning in Molina v. Zaknich (2001) 24 W.A.R. 562 calls for a different result to be reached in the present case. In my opinion the offence under the Act and Regulation of possessing a prescribed net was proved against Mr Yasso beyond reasonable doubt. It was not an offence of taking or keeping fish. The fact that he was under s. 14(1) of the Act entitled to “take” or catch fish under Aboriginal tradition afforded him with no answer to the charge laid in the complaint.
There was no binding authority on the proper construction of “relating to property” in the majority judgments, with Brennan J and Deane J directly opposed on the issue and Dawson J not deciding. In my respectful view, where attention is focused just on the “relating to property” issue, if the minority decisions are given respectful consideration, then taken with Deane J’s position, the case provides very useful authority on how to approach the issue.
Based on the above analysis of authority, I consider that the offence before the Court is an offence relating to property.
First, Justice Brennan’s ‘elements of the offence’ approach stands against the weight of authority in the High Court and the Western Australian and Queensland Courts of Appeal. Rather, the authorities support a broader construction of the phrase ‘offence relating to property’. While the precise boundaries of that construction are not defined, the offence as charged in this case is one which falls within the ordinary meaning of an offence relating to property in that it involves the unlawful destruction of vegetation owned by the Crown.
Second, it is not sufficient to break that nexus that the section is concerned with regulating the carrying on of development rather than protecting the Crown’s title to vegetation (as Justice Brennan’s judgment might suggest). Rather the contrary. Looked at without regard to the particular form of the offence charged here, the offence is concerned with preventing the carrying out of certain forms of development. However, the nature of such development involves actions impacting the use of land and structures on land. That is, in my view an offence relating to property.
That conclusion is made even more compelling when one considers the offence in question not to be identified just by the elements of the offence created by s. 162 itself, but also by the form of the offence charged in this case. The offence charged was ultimately articulated as clearing native vegetation on prescribed land without one of the identified excuses. That is, it is an offence which prevents interference with the Crown’s property.
Third, in my view, the correct point of analysis of the offence is the form of offence actually charged, not just the words of the offence creating provision. Whatever might be the proper approach in other cases, s.162 creates an offence in plenary terms which can be committed in numerous, perhaps innumerable ways. It makes no sense to ignore the form of the offence actually charged in applying the potential defence in s. 22(2).
Fourth, there is a strong analogy between the statutory scheme informing the offence considered in Walden and the scheme informing the offence in this case.
Fifth, the Court of Appeal has twice dealt with analogous offences in earlier town planning legislation where the offence was committed by unlawful clearing of protected native vegetation. In both cases, the Court concluded that s. 22(2) was excluded but in neither case was there any consideration of whether the offences were offences relating to property. That appears to have been assumed to be correct in both cases: see [225] to [229] below. This provides some, albeit inferential, support for my conclusion.
The offence with which Mr Burns was charged under s. 162 Planning Act was an offence relating to property for the purposes of s. 22(2).
The honest claim of right
The next issue is whether the prosecution can exclude beyond reasonable doubt that in clearing of the land, Mr Burns was doing acts with respect of any property in exercise of an honest claim of right and without intention to defraud. There was no dispute that clearing the land was an act done with respect to property, being the native vegetation owned by the Crown.
Honesty
The Council maintained its submission on the appeal that honesty was excluded on the evidence. That was based on the proposition that Mr Burns conceded in cross examination that paragraphs 3(b)(i) and 8 of the Determination did not authorise his clearing for the purpose of construction of a house for the exclusive use of his daughter. Mr Burns, to his credit, made those concessions without prevarication: see paragraphs [135] and [136] above. Council submitted that given Mr Burns’ involvement in negotiation of the Determination, he must have realised the matters which he conceded in cross examination at the time of clearing the land. To be fair to the Council, that was a reasonable submission to make on the evidence.
The question of Mr Burns’ honesty in belief regarding his claim of right is a question uniquely suited to determination by a trial judge who has seen and heard the whole of the evidence. It is the index case for the advantage of a trial judge over an appeal court. This Court does not have the benefit of a finding by the trial Judge on the issue because his Honour’s analysis stopped at the first stage: whether there was an offence relating to property. It is an interesting question as to whether, on a conviction appeal, this Court could refer the complaint back for a retrial where error is shown in the conviction but there are no findings on a central question of credit which must then be resolved to dispose of the appeal.
However, having read the whole of Mr Burns’ evidence and reviewed much of the evidence adduced at trial, I have concluded that I am in a position to reach a conclusion on the issue, especially as the Council had to exclude honesty to the criminal standard. In my view, the evidence falls short of demonstrating a lack of honesty in Mr Burns’ claim of right.
First, one did not have to be present at the trial to observe the lack of prevarication or self-justification in Mr Burns’ responses when cross examined on the words of the Determination. That manifestation of demeanour is not always a sign of an honest witness, but it is a pointer in that direction.
Second, I do not accept the inference that because Mr Burns was involved in the negotiation of the Determination and was seemingly also involved in administration of rights under it from time to time, he necessarily knew the detailed content of its terms. This might strike some as improbable, but experience in other fields shows that even sophisticated parties can be quite vague on the details of legal documents. The lack of awareness of, and compliance with, the terms of construction contracts by sophisticated parties in large projects is an example which springs to mind.
Third, the conclusion that the explanation for Mr Burns’ lack of awareness of the express words of the Determination is inadvertence tends to be supported by the lack of awareness shown by the other witnesses called for the defence. Neither Dr Cooms nor Mr Costello seemed to be aware of the detail of the Determination, nor of its governing status in respect of native title rights on the island, despite both being involved in the negotiations and, seemingly, in management of the QYAC.
I am not satisfied that Mr Burns’ claim of right was not honestly advanced. However, it would seem to be a wise and salutary step for all persons interested in land on the island to familiarise themselves with the detail of the Determination; especially persons involved directly with the affairs of Quandamooka people.
For the same reason, I find Mr Burns did not have any intention to defraud (though the Council did not submit that he did). The remaining issues are:
(a)What was the nature of Mr Burns’ claim of right; and
(b)Does that claim of right fall within the scope of s. 22(2)?
The claim of right
The parties’ positions
The content of a defendant’s claim of right is a question of fact to be determined on the evidence at trial. At trial, and again on appeal, Mr Burns submitted that he cleared the land in exercise of a claim of right arising under the Determination. In particular, Mr Preston submitted that Mr Burns believed that when clearing the land, he was exercising specific rights under the Determination:[69]
(a)To live and be present on the land under paragraph 3(b)(i); and/or
(b)To take traditional natural resources and use them for personal and domestic purposes under paragraph 3(b)(ii).
[69] This was confirmed in writing in response to my direct inquiry by an email from Mr Burns’ solicitors on 28 August 2024 which I have now marked for identification.
At trial, Mr McAvoy handed up a schedule of evidence relevant to the honest claim of right defence which was adopted on the appeal. Mr Preston also relied on a schedule of evidence relevant to the cultural activity exemption at trial as also touching on this issue.
The Council’s principal submission was that even if the claim of right advanced by Mr Burns arose, it did not as a matter of law comprise a claim of right within the scope of s. 22(2). I deal with that next. However, Mr Wylie also submitted that the claims of right contended for did not arise on the evidence. I deal with that first.
The claim of right
The claim of right relied upon on the appeal
The evidence relevant to identification of any claim of right held by Mr Burns is set out in paragraphs [120] to [141] above.
A claim of right is the belief by the defendant that he or she is legally entitled to do the act in relation to the property which gives rise to the offence. Belief requires identification of the state of mind of the defendant. The time for assessment of that state of mind is at the time of doing the act giving rise to the offence. A state of mind must be inferred, and it can be inferred from things said or done by the defendant relevant to his or her state of mind including statements directly addressing his or her state of mind.
It is useful to start with the submission advanced by Mr Burns on the appeal. Namely, that Mr Burns believed he was entitled to clear the land because the clearing was authorised by paragraphs 3(b)(i) and 3(b)(ii) of the Determination. The evidence does not raise any such belief. Nowhere in his evidence in chief does Mr Burns expressly or impliedly state that he believed he was entitled to clear the land for his daughter’s house because of his understanding of those two specific provisions. Indeed, nowhere in his evidence in chief does Mr Burns refer to the rights under the Determination at all. The only evidence which does raise any belief based on the Determination is his equivocal answer in cross examination when taken to the paragraph 3(b)(i) of the Determination by Mr Wylie. That answer was in response to a leading question and was not linked to Mr Burns’ state of mind at the time of the clearing. That answer was no more relevant to his state of mind than his later concession that his purpose was inconsistent with the definition of live.
The other evidence which needs to be considered is Mr Burns’ evidence that the clearing was in some way part of fire management. The learned Magistrate held in that regard:[70]
It is crystal clear that the purpose of the clearing was to provide a building site for a house that Mr Burns intended to build. Later suggestions made by Mr Burns in his evidence that the activity also had the effect of fire hazard reduction and/or mitigation of danger by removing unhealthy and dangerous trees and was in keeping with traditional land use management or that he was taking note of resources for a traditional cultural purpose were disingenuous, and seem to be – to me, to be made with a view to somehow fit his activity into the scope of a traditional cultural activity.
I find as a matter of fact that the clearing of the land conducted on behalf of Mr Burns was conducted for the sole purpose of providing a cleared area upon which he proposed to erect a substantial and permanent house for his daughter. It was never the case that it was cleared with a view to mitigate any fire hazard, nor were the trees cleared as a result of any concern on the part of Mr Burns that they posed a danger to anyone as a consequence of limbs falling from them. The land was not cleared [indistinct] exercise in traditional land management practice. It was never Mr Burns’ intention to utilise the fallen timber as a resource. The timber was stacked into piles with a view to burning it. There is no credible evidence that it was going to be used for or by anyone for any purpose and the notion that the burnt timber would somehow be used to enrich the soil was disingenuous at best and is dismissed as a matter of fact.
[70] Reasons TS1-4.3 to .24.
There was no direct challenge to those findings. In any event, reading the transcript, I think it is correct that Mr Burns was raising matters of fire management which were not in his mind at the time of the clearing except to this extent: he wanted to clear vegetation well away from the house pad to reduce fire risk. In my view, the evidence does not raise any inference that Mr Burns believed at the time that the clearing of the land was authorised by paragraph 3(b)(ii) of the Determination, nor that he was entitled to clear for fire management purposes.
An alternative claim of right?
Mr Burns is a defendant in a criminal proceeding. If there is evidence which raises the defence under s. 22(2), the onus will be on the complainant to exclude that defence beyond reasonable doubt, even if it is not specifically relied upon by the defence.
Mr Burns’ evidence is frequently consistent with a belief that he was entitled to clear the land for a house for his daughter. However, it is necessary for the evidence to raise in some sufficiently certain manner a particular claim of right which authorised the clearing of the land. One difficulty in establishing the existence of some such belief is that much of the evidence Mr Burns gives describes what other Quandamooka people have done on the island, and what their attitude is regarding an entitlement to clear land. The evidence does not directly address what Mr Burns’ belief was regarding his entitlement to clear the land at the time he did so.
Mr Burns does make two unequivocal statements relevant to entitlement: those in paragraphs [126] and [127] above. That evidence suggests that he believed he was entitled to clear the land for housing because to do so was part of his native title rights (as a Quandamooka man). His evidence about his understanding of clearing and building on land by other Quandamooka people provides some context to the nature of that native title right. The blazing of the trees to mark out his interest in the land to other Quandamooka people supports the view that he was purporting to notify an entitlement which arose amongst Quandamooka people specifically.
Taking that evidence at its highest, it raises the proposition that at the time Mr Burns cleared the land for building, he believed he was entitled to clear land for building purposes on land (other than freehold land) in accordance with a right that all Quandamooka people had to do so, based on historical practices, which he considered to be native title rights.
As that claim of right arises on the evidence, the next question is whether that gives rise to a claim of right within the meaning of that expression properly construed in s. 22(2).
Is the claim of right within the scope of s. 22(2)?
The Council submitted that no claim of right can arise in respect of unlawful clearing under the Planning Act. The Council relied on two judgments of the Court of Appeal: Scriven v Sargent [2017] QCA 95 and McDonald v Holeszko [2019] QCA 285. Those cases do not support the proposition advanced by the Council as they dealt with different claims of right from that before the Court in this case.
Both cases involved appeals against convictions for unlawful clearing under the predecessor statutes of the Planning Act. Scriven involved s. 4.3.1 Integrated Planning Act1997 and McDonald involved s. 578(1) SPA. Those provisions created an offence of carrying out development without a valid development permit, rather than carrying out prohibited development, but the offences are analogous.
It is convenient to start with the earlier decision of Scriven. In that case, the appellant had cleared protected vegetation on freehold farming land for cattle feed. The appellant submitted, relevantly, that he believed that his rights as holder of freehold title entitled him to make use of vegetation on the land. While that was wrong as a matter of law, the appellant submitted that this gave rise to an honest claim of right. That submission failed at trial in the Magistrates Court and on appeal to this Court. It also failed in the Court of Appeal. Boddice J gave the leading judgment (Morrison JA and Dalton J agreeing). His Honour held:[71]
[71] Scriven v Sargent [2017] QCA 95 [20]-[26].
In Walden v Hensler Deane J observed:
“An honest belief of a special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know. … In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.”
In discussing the ambit of s 22, Deane J considered offences involving the taking of property from the natural environment:
“An example of such a possible offence is that of mining in a natural forest. If the offence charged be the extraction of minerals owned by the Crown or another person in breach of the provisions of royalty legislation, the existence of an honest belief of ownership of the relevant minerals would found a defence of claim of right under s 22 of the Code in that, if the belief were well founded, the offence would not have been committed. On the other hand, if the mining is in breach not of royalty provisions but of a general conservation law intended to protect the forest from all mining activities, including any mining activities of the owner of the minerals, an honest belief of ownership of, or of some more limited claim to, the minerals could not constitute a defence of claim of right under s 22 for the reason that, even if it had existed, ownership of, or the more limited claim to, the minerals would be simply irrelevant. …”
In Walden, the relevant offence imposed a general prohibition upon the taking or keeping of prescribed fauna irrespective of any proprietary or lesser right. That offence was committed regardless of whether a person was exercising rights of ownership or traditional rights of hunting with respect to that fauna. As Deane J observed:
“That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals. In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights.”
Dawson J reached a similar conclusion. The reasoning of Deane and Dawson JJ in Walden has been expressly adopted and applied by this Court.
The applicant submits that s 4.3.1 does not constitute a general offence as unconditionally fixed natural vegetation is registered as a fixture to real property and accordingly a matter to which the applicant properly has a claim of ownership as the registered owner of the property in question. A defence of claim of right pursuant to s 22 was available because the claim was an entitlement to act in respect of the native vegetation.
That submission cannot be accepted for two reasons. First, the natural vegetation on the applicant’s land was not a fixture for the applicant to use as he saw fit. The IPA and the VMA lawfully protected clearance of that natural vegetation without an effective permit.
Second, that submission fails to accord any significance to the requirement in s 22 for the honest belief, if it had been well founded, to be a defence to the charge. The belief claimed by the applicant amounted to no more than an assertion that he honestly believed he had an entitlement to act in relation to the native vegetation. That assertion amounts to no more than an allegation he was unaware of the effects of the relevant legislation. Such a claim, even if held honestly, is not protected by s 22 as it merely amounts to ignorance of the law.
That case was approved and applied in McDonald. Again, that case involved the assertion of an honest claim of right based on the ownership of freehold title to land on which vegetation was cleared.
The claim of right which arises in this case is that which I have identified in paragraph [223] above. It differs from the claim of right considered in Scriven and McDonald. The ratio of those decisions does not apply to this case. They do not stand for the proposition that there can never be an honest claim of right defence in answer to a vegetation clearing offence, though the statements of principle will inform the analysis of the claim of right which arises here.
No other case cited provides a direct answer to the question of whether a claim of right within the scope of s. 22(2) arises in this case. That question must be resolved by the application of established principle.
In my view, the claim of right arising on the evidence is one to which s. 22(2) responds. I refer to the passages from Deane J’s judgment in Walden set out in Scriven above. Also relevant is Justice Deane’s comment as follows (at 580):
That being so, it becomes necessary to consider whether the act of keeping the two bustards was an act done by the appellant with respect to the property "in the exercise of an honest claim of right" for the purposes of that section. The phrase "honest claim of right" has no defined meaning for the purposes of the Code. Its connotation in s. 22 must be determined in the context of the opening provision of that section that ignorance of the law does not of itself afford any excuse for an action or omission which would otherwise constitute an offence and against the background of general common law principle to that effect. Plainly, the fact that a person can honestly say that he thought he was entitled to do the relevant act because he was unaware that it was proscribed by the criminal law does not suffice to provide him with a defence of honest claim of right under s. 22. Nor does an honest belief of some special entitlement to do the particular act with respect to property necessarily constitute such a defence.
His Honour thereafter made the observations cited in Scriven.
In my view, absent the cultural activity exemption, Mr Burns’ claim of right would not fall within the scope of s. 22(2). A belief that he was entitled by native title rights to clear land would rise no higher than an ignorance of the law because even if he had such native title rights, they would not have provided any answer to the specific prohibition on clearing native vegetation. However, the existence of the cultural activity exemption changes the position. Mr Burns’ belief as to his claim of right was one which if correct, would have given rise to the cultural activity exemption. That is, if he was correct in his belief that he had a traditional right to blaze, clear and build, then that would have excluded the clearing for that activity from the scope of the offence because the clearing would have fallen within the scope of exempt clearing work.
CONCLUSION
While I have concluded that the clearing was not lawful by reason of the Determination or because it was for a traditional Quandamooka cultural activity, I am satisfied that the Council has not excluded that the clearing of the land by Mr Burns was done in the exercise of an honest claim of right under s. 22(2) of the Code.
Accordingly, Mr Burns is entitled to succeed on his appeal.
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