FEDERAL COURT OF AUSTRALIA

Walker v State of Queensland [2005] FCA 1316

EILEEN WALKER AND ORS v STATE OF QUEENSLAND AND ORS

QUD 6008 of 1998

ALLSOP J

20 SEPTEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The parties to the notice of motion filed by Rodney George Parker provide within 14 days any further submission or an indication of any request for further hearing.

2.                  The communication referred to in 1 may be made directly to the associate to Allsop J.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 24 March 2005, I heard in part a notice of motion brought by Rodney George parker to be joined as a party to these proceedings under s 84(5) of the Native Title Act 1994 (Cth) (the “Act”).

2                     Section 84(5) is in the following terms:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.

3                     On 24 March 2005, I dealt with evidence filed by that date.  The following evidence was read:

On behalf of Mr Parker

(a)                the affidavit of Mr Parker of 11 October 2004:  paragraphs 6, 7, 8, 9, 20 and the first sentence of 24 were rejected.  Leave was granted to replace paragraphs 6, 7, 8, 9 and 20 by further evidence, admissible in form, dealing with the contents of those paragraphs otherwise inadmissible in form;

(b)               the affidavit of David Kempton (Mr Parker’s solicitor) of 11 October 2004; and

(c)                the affidavits of Mr Parker of 21 December 2004 and 16 February 2005;

In opposition to the motion

(d)               the affidavits of James Paul Suntar (a “negotiator” for the State of Queensland) of 3 March 2005 and 24 March 2005; and

(e)                the affidavit of Marita Louise Stinton, a legal officer employed by Cape York Land Council, of 16 October 2004:  paragraphs 5, 6, 10, 14 and 15 were either not pressed or rejected.

4                     Pursuant to the leave that I gave in relation to paragraphs 6, 7, 8, 9 and 20 of the affidavit of Mr Parker of 11 October 2004, there was filed on 5 April 2005 another affidavit of Mr Parker of 24 March 2005.  I assume it was served.  On that assumption, I will treat the affidavit as read, reserving to the applicant to the proceedings and the State an opportunity of objecting to it.

5                     Without any leave, on 19 April 2005, there was filed in the Court in Brisbane an affidavit of Mr Sunter.  I assume it to have been served.  On that basis I grant leave, nunc pro tunc, for it to be filed and I will take it as read, reserving to Mr Parker an opportunity of objecting to it and adding to the evidence raised by it.

The facts

6                     Mr Parker occupies land which is a timber reserve at Whale Bone Bay and has done so for 16 years.  Whale Bone Bay is a small beach 11 nautical miles north of Bloomfield River at Ayton and 23 nautical miles south of Cooktown.  Mr Parker has a built a home on the land which he occupies.  Access is by boat only, as there are no roads.  Since 1992, he has made various enquiries of government departments as to tenure.  In 1992 he was told by the Queensland Department of Lands that the land upon which he was living was a timber reserve.  In 1992, Mr Parker requested the Cook Shire Council for a lease near Whale Bone Beach.  The Council apparently replied that it had no objection to the granting of a permit to occupy part of the relevant timber reserve, but that it would not provide any assistance with the provision of access to the site and it would be unable to guarantee that any assistance would be provided in the event of an emergency such as a cyclone.  In January 1993, Mr Parker made an application in writing to the Department of Lands for a special lease over the area.  Shortly thereafter, the Department of Lands acknowledged Mr Parker’s application and advised that the view of the local authority would be sought.  Later in 1993, the Department of Lands advised Mr Parker that his application had been refused as the area was required for future public purposes.  Later that year, in December, Mr Parker wrote to the Department of Lands seeking advice as to the exact future public requirements of the area.  In December 1993 the Department of Lands advised Mr Parker by letter that the relevant timber reserve was required for national park purposes. 

7                     Mr Parker has sought to develop a good relationship with the Yalanji people.  It is unnecessary to make any factual findings about that.  The claimants, however, oppose Mr Parker’s joinder.  That is all I need understand.  Mr Parker has sought some indication of the willingness of the Yalanji people to grant him a lease should they succeed in their claim.  He has received no unequivocal statement of position one way or the other about that. 

8                     In 2004 Mr Parker sought to join the proceedings as a party.  He withdrew that application.  It would appear that he withdrew that application on the basis that he was concerned that the steps he was taking would offend the Yalanji people.  He has reconsidered his position and seeks to join the proceedings.  No evidence of any prejudice to the proceedings and its conduct has been led by reason of the application.  He says he is keen to become a party to protect his interests (whatever they may be) and to give the Yalanji and himself an opportunity to reach a lasting agreement.  I do not propose to approach the matter on the basis that Mr Parker’s application and withdrawal last year should prejudice him.  Given the lack of any evidence as to the prejudice to the resolution of the matter I propose to look at the question of his joinder in an orthodox fashion as to the operation of s 84(5).

9                     Sections 73, 74 and 75 of the Queensland Forestry Act 1959 are in the following terms:

73 Unlawfully using State forests etc.

(1) Any person who, except under the authority of and in compliance in every respect with a permit or licence or other right or authority granted under this Act, or a lease, licence, or other authority from the Crown, on any State forest, timber reserve or forest entitlement area--

(a)     depastures any stock; or

(b)     occupies, resides or camps upon, or encloses any land or waters, or grows crops upon any land, or clears or breaks up any land for cultivation or for any other purpose; or

(c)     places any beehives; or

(d)     searches for or collects minerals; or

(e)     traverses any part of such area with vehicles, teams, horses, or other animals;

shall be guilty of an offence against this Act.

(2)The chief executive may from time to time grant permits for the purposes of subsection (1)(e) to such persons as the chief executive deems fit and subject to such provisions, reservations and conditions as the chief executive deems fit.

74 Unauthorised building etc. within State forest etc.

(1)  When any building, hut, tramline, fence, dam, weir, standing crop, or any other thing, or any property that appears to have been abandoned, is found within a State forest, timber reserve or forest entitlement area and--

(a) the owner or occupier thereof does not on demand produce any lease, licence, permit, or other authority therefor; or

(b) after reasonable enquiries made by a forest officer the owner or occupier thereof can not be ascertained or can not be found;

then on the hearing of the complaint by a forest officer acting with the authority of the chief executive, any Magistrates Court may fix a time within which such building, hut, tramline, fence, dam, weir, crop, or other thing, or that property, shall be removed.

Unauthorised building to become property of Crown

(2)  If such removal is not effected within the time so fixed, such building, hut, tramline, fence, dam, weir, crop, or other thing, or that property, shall become the property of the Crown and may be disposed of or otherwise dealt with as the chief executive may direct.

Service of order for removal of building etc.

(3)  In any case where after such enquiries by a forest officer as aforesaid an owner or occupier has not been ascertained or has not been found, the order of the Magistrates Court fixing the time for removal of the building, hut, tramline, fence, dam, weir, crop, or other thing, or the property, shall, within a period fixed by the court for that purpose, be posted on some conspicuous part of the land on which the building, hut, tramline, fence, dam, weir, crop, or other thing, or the property, is situated and no other service or publication of that order need be made or given.

(4)  In this section--

owner, in relation to property that has been abandoned, means the person who was the owner of the property immediately before the property was abandoned.

75 Removal of trespassers

Any forest officer who has reason to believe that any person is in unlawful occupation of any State forest, timber reserve or forest entitlement area, or part thereof, may make complaint before justices, who shall hear and determine the matter in a summary way, and on being satisfied of the truth of the complaint, shall issue their warrant, addressed to any police officer, requiring the police officer forthwith to remove such person from such land, and to take possession of the same on behalf of the Crown, and the person to whom the warrant is addressed shall forthwith carry the same into execution.

10                  Mr Parker has no lease, licence, permit or other authority from the Department of Lands or any relevant Queensland Government department to be living on the property.  However, it would appear that no demand has been made on him in relation to the structure that he has built on the land or as to his presence there.  Mr Parker views Whale Bone Bay and the structure upon it as his only place of residence.

11                  On 24 November 2004, Mr Parker was formally asked by the Queensland Environmental Protection Agency to produce a lease, licence, permit or authority that authorised the construction of the dwelling in which he lives on the timber reserve.  Mr Parker has not produced any.  He has none. 

12                  Detailed submissions have come in a number of waves from the parties.  I have indicated to the parties that I will provide counsel with an opportunity to address the matters in this judgment.  I indicated on 24 March 2005 that I would attempt to deal with the matters on the papers as they stood expressing views that were substantially provisional.  That is how these reasons should be understood.

13                  Counsel for the claimant in the application stated unequivocally on 24 March 2005 that the claim of the applicant for the land  upon which Mr Parker lives is non-exclusive possession.  I do not understand the submissions to withdraw from that.  If there is a qualification to that position, it should be said so clearly, shortly and without complexity.

14                  Mr Parker’s interest is his occupation of the land upon which he has constructed improvements which he estimates to be worth (that is, I would understand, to have cost him) about $100,000.  He continues to use and enjoy the land by living there. 

15                  The difficulty for Mr Parker (however much sympathy one may feel for his position) is that he has no authority to be present and live on the land from any relevant Government department and it is unlawful for him to do so.  He has no authority, permit, licence or other right of authority granted under the Forestry Act.  The consequences of that fact is that his very presence on the land means he is guilty of an offence under the Act:  s 73 of the Forestry Act.  The building that he has constructed is unauthorised and is potentially property of the Crown under s 74 of the Forestry Act.  Under s 75 he can be removed as a trespasser. 

16                  Mr Hiley QC submits that none of this has occurred and Mr Parker’s application should be viewed on the simple proposition that he is in possession of land upon which he has spent money and he wishes to be in a position to protect such position as he has.  However, it appears that the position that he has is not only as a trespasser but as someone who is committing an offence under Statelaw in living there.

17                  Also, whilst the submissions are less than pellucid, the unequivocal position has been put by counsel for the claimant that non-exclusive possession of the land is sought.  Therefore, it is difficult to see how Mr Parker’s interests can be affected by the claim.  This is especially so since Mr Parker’s interests are unlawful interests.  Nothing the claimants can do can alleviate the position of Mr Parker as he stands with respect to the State.  If it were the case that Mr Parker were to obtain an authority from the State his position may be quite different.

18                  The case of Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730 was relied upon by Mr Hiley for the proposition that interests for the purposes of s 84(5) of the Act could include activity and use which was unlawful.  I do not so read the decision of Dowsett J in that case.

19                  Whilst the notion of interest for the purposes of s 84(5) is broad: see Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1, I do not read the authorities as permitting its extension to a person whose very occupation of the land is an unlawful act and who has been denied permission by the Government to remain on the land.

20                  Thus, not only do I have difficulty in seeing how there is any relevant interest in Mr Parker, but also it is difficult to see how it can be said that any lawful interest is affected by the possibility of non-exclusive native title in the circumstances where there is nothing that the claimants, as putative native title owners on a non-exclusive basis, can do to remedy Mr Parker’s unlawful possession, before or after the declaration of any title (should that occur).

21                  I indicated to the parties that I would give them further time to address any issues once I had formed provisional views.  The above are my provisional views.  I would have thought, however, that the parties had sufficiently addressed the issues.

22                  I will stand the matter over for a short period of time.  Mr Parker and his legal representatives can consider whether they wish to put anything further either in writing or orally.  However, at the moment I propose to dismiss Mr Parker’s motion. 

23                  Subject to hearing from the parties, I would need to be persuaded why I should order Mr Parker to pay the costs, bearing in mind the history of the matter.

Associate:

Dated:              20 September 2005