Stradbroke Island land clearing case appealed as traditional cultural activity

An Indigenous elder found guilty of illegally clearing land to build a house has appealed on the grounds it was a traditional cultural activity.

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A North Stradbroke Island Indigenous elder and ranger who a court found guilty of illegally clearing land at Point Lookout to build a house has lodged an appeal, claiming it was a traditional cultural activity under his native title rights.

In a prosecution brought by Redland City Council, Quandamooka man Darren Burns was fined $20,000 in Brisbane Magistrates Court earlier this year for carrying out a prohibited development on the island.

But he has now lodged a District Court appeal, arguing he was entitled to knock down a swath of trees under his native title rights and was exempt from planning laws.

Mr Burns, a Quandamooka ranger on Straddie which is also known by its Indigenous name of Minjerribah, was found guilty in February of illegally clearing 2900sq m of protected vegetation at Point Lookout.

In a public statement issued after the decision, the council said it acknowledged and respected that native title existed on the site but had brought the case solely to address the unlawful clearing of that land.

“Council takes the unlawful clearing of vegetation seriously and will continue to hold all persons accountable for the illegal clearing of vegetation,” the council said.

Trees that have been cleared on North Stradbroke Island (Facebook image)

But in a District Court appeal, lawyers for Mr Burns have contended that magistrate Ross Mack erred in finding that the Quandamooka man was not exercising his inherent rights under native title to clear the land.

Mr Mack’s finding that Mr Burns was not exercising his rights because he had cleared the land to build a house was irrelevant because he had an existing recognised right under native title to take natural resources, his lawyers have argued in appeal documents.

Lawyers noted that Mr Mack had found that Mr Burns cleared the land for the sole purpose of providing a cleared area on which he proposed to erect a substantial and permanent house for his daughter.

They said the magistrate had conflated the removal of vegetation to build a house with traditional Aboriginal land management practices.

The lawyers said Mr Burns’s case was that burning the vegetation would enrich the soil, and his evidence of plant regrowth had not been challenged in court.

“The appellant (Mr Burns) at no time contended that the ultimate construction of the proposed residence and later use of the land was either a traditional Aboriginal cultural activity or in exercise of any native title right which he had,” the appeal documents said.

“He conceded always that he would, after, require approval for any necessary construction but that he had, up until then, engaged in a traditional cultural activity.”

Mr Burns’s lawyers have asked the District Court to acquit him or order a new trial.

Redland City Council has declined to comment as it is before the court. A hearing has been set down for next month.

Trees that have been cleared on North Stradbroke Island (Facebook image)

Originally published as Stradbroke Island land clearing case appealed as traditional cultural activity