North Stradbroke Island elder and ranger wins land clearing appeal against Redland City Council

An Indigenous elder who was fined $20,000 by Redland City Council for illegal land clearing to build his daughter a house, has won his appeal because council failed to prove he did not honestly believe he had a right to clear his land.

STRADBROKE 15th June 2015 PHOTOGRAPH BY GLENN HUNT Darren Burns, Land and Sea manager with QYAC(Quandamooka Yoolooburrabee Aboriginal Corporation) on Stradbroke Island.

A North Stradbroke Island Indigenous elder and ranger who was fined $20,000 for illegal land clearing, has won his appeal with a judge finding the council failed to prove he did not honestly believe he had a right to clear his land.

In his decision handed down on Friday, Brisbane District Court Judge Bernard Porter ruled that Redland City Council failed to exclude the possibility that Darren Burns’ clearing a swath of trees on Straddie to build a house for his daughter “was done in the exercise of an honest claim of right” under the state’s Criminal Code Act.

The defence of acting in relation to property when a person honestly believes they have a right to act was enshrined in Queensland law 126 years ago.

Judge Porter ordered that Mr Burns’ conviction for illegally clearing 2900 sqm of “protected vegetation” at Point Lookout in mid-2020 be set aside as Mr Burns defence that he was “not criminally responsible” was valid because he honestly believed he had the right to clear the trees.

Darren Burns, Land and Sea manager with QYAC (Quandamooka Yoolooburrabee Aboriginal Corporation) on Stradbroke Island. Picture: Glenn Hunt

He was convicted in February last year in Brisbane Magistrates Court by Magistrate Ross Mack after a five day trial.

The charge was of carrying out a prohibited development.

Judge Porter also ordered that the fine of $20,000 imposed by Mr Ross plus professional costs of some $33,000 also be set aside.

“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,” Judge Porter stated in his 61-page decision.

“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,” he noted.

Judge Porter upheld Mr Mack’s finding that Mr Burns had not engaged in a traditional Aboriginal or Torres Strait Islander cultural activity in clearing the land

He concluded that the clearing was not lawful by reason of the Quandamooka Native Title Determination or because it was for a traditional Quandamooka cultural activity.

Originally published as North Stradbroke Island elder and ranger wins land clearing appeal against Redland City Council