Combined Gunggandji People v State of Queensland [2009] FCA 979 (31 August 2009)

Last Updated: 1 September 2009

FEDERAL COURT OF AUSTRALIA

Combined Gunggandji People v State of Queensland [2009] FCA 979

NATIVE TITLE – deed of grant of land in trust – whether lease pursuant to s 316A of the Land Act 1962 (Qld) – interpretation and effect of s 361A the Land Act 1962 (Qld) – ownership of improvements by somebody other than the Crown or the holder of the fee simple title pursuant to a deed of grant – whether improvements on land prior to the deed of grant – whether ss 343 and 344 of the Land Act 1962 (Qld) or ss 57 and 61 of the Land Act 1994 (Qld) should be applied as imposing a requirement for ministerial approval of any lease and in fixing its term – application of s 20 of Acts Interpretation Act 1954 (Qld)

NATIVE TITLE – deed of grant of land in trust – whether licence pursuant to s 425 Land Act 1994 (Qld) – whether continued occupation of land

Native Title Act 1993 (Cth) ss 61, 225
Acts Interpretation Act 1910 (Cth) s 8

Land Act 1962 (Qld) ss 5, 21, 236, 237, 238, 343, 344, 361A
Land Act 1994 (Qld) ss 57, 425A, 511, 520
Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld)
Acts Interpretation Act 1954 (Qld) s 20, 32C(a)

Commissioner of Main Roads v The North Shore Gas Company Limited (1967) 120 CLR 118 considered
Abbott v Minister for Lands [1895] AC 425 considered
Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203 cited
Director of Public Works v Ho Po Sang [1961] AC 901 considered
Mathieson v Burton (1970) 124 CLR 1 considered
NSW Aboriginal Land Council v Minister Administering The Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 considered
Esber v The Commonwealth of Australia (1991) 174 CLR 430 considered
Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291 cited
Chang v Laidley Shire Council (2007) 234 CLR 1 considered

LESLIE MURGHA AND STEWART ERIC HARRIS ON BEHALF OF THE COMBINED GUNGGANDJI PEOPLE v STATE OF QUEENSLAND, CAIRNS PORT AUTHORITY, CAIRNS REGIONAL COUNCIL, YARRABAH ABORIGINAL SHIRE COUNCIL, PERCY & ALF NEAL, BLACK AND WHITE (QUICK SERVICE) TAXIS PTY LTD, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, BRENT ROBERT BASIL BATCH, JM CAMPBELL, WAYNE CHADWICK, NT CHAPMAN, JOHN DEUBLE, WILLIAM DILLON, BARRY EHRKE, DANIEL GARY HUDSON, DON MCKINNON, DONALD ALAN MORRIS, JON NEVILLE, ROBERT PETER RALPH, BRUCE ROSE, ROBERT STEFAN JOHN STANDEN, PAUL RICHARD WILLIAMS, MICHAEL CONNOLLY, VANCE HENRY GORDON, THE PUBLIC TRUSTEE OF QUEENSLAND AS EXECUTOR OF THE ESTATE OF ALAN CONRAD KYNUNA SNR, HARRY BLUCHER LUDWICK, DARRYL RALPH POLLARD AND ELAINE MARINA POLLARD, ALLAN MIMO YEATMAN, FITZROY ISLAND HOLDINGS PTY LTD and QUICKSILVER CONNECTIONS LIMITED
QUD 6013 of 2001

DOWSETT J
31 AUGUST 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6013 of 2001

BETWEEN:

LESLIE MURGHA AND STEWART ERIC HARRIS ON BEHALF OF THE COMBINED GUNGGANDJI PEOPLE Applicant

AND:

STATE OF QUEENSLAND First Respondent CAIRNS PORT AUTHORITY Second Respondent CAIRNS REGIONAL COUNCIL Third Respondent YARRABAH ABORIGINAL SHIRE COUNCIL Fourth Respondent PERCY & ALF NEAL Fifth Respondents BLACK AND WHITE (QUICK SERVICE) TAXIS PTY LTD Sixth Respondent ERGON ENERGY CORPORATION LIMITED Seventh Respondent TELSTRA CORPORATION LIMITED Eighth Respondent BRENT ROBERT BASIL BATCH, JM CAMPBELL, WAYNE CHADWICK, NT CHAPMAN, JOHN DEUBLE, WILLIAM DILLON, BARRY EHRKE, DANIEL GARY HUDSON, DON MCKINNON, DONALD ALAN MORRIS, JON NEVILLE, ROBERT PETER RALPH, BRUCE ROSE, ROBERT STEFAN JOHN STANDEN, PAUL RICHARD WILLIAMS Ninth Respondents MICHAEL CONNOLLY Tenth Respondent VANCE HENRY GORDON Eleventh Respondent THE PUBLIC TRUSTEE OF QUEENSLAND AS EXECUTOR OF THE ESTATE OF ALAN CONRAD KYNUNA SNR Twelfth Respondent HARRY BLUCHER LUDWICK Thirteenth Respondent DARRYL RALPH POLLARD AND ELAINE MARINA POLLARD Fourteenth Respondents ALLAN MIMO YEATMAN Fifteenth Respondent FITZROY ISLAND HOLDINGS PTY LTD Sixteenth Respondent QUICKSILVER CONNECTIONS LIMITED Seventeeth Respondent

JUDGE:	DOWSETT J
DATE:	31 AUGUST 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

GENERAL

1. In these proceedings, Mr Les Murgha and Mr Stewart Harris, on behalf of the Combined Gunggandji People (the “Applicant”) seek a determination of Native Title pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”). The application relates to land identified in a map which is attached to the application (the “claim area”). The claim area lies to the south of Cairns, borders Mission Bay and includes the Yarrabah township. There are numerous respondents including the State of Queensland (the State”), Yarrabah Aboriginal Shire Council (the “Council”), Ergon Energy Corporation Limited, Telstra Corporation Limited, Black and White (Quick Service) Taxis Pty Ltd, numerous fishermen and other parties including Mr Harry Blucher Ludwick (“Mr Ludwick”). I am presently concerned with a claim by Mr Ludwick that he is entitled to a lease or licence to occupy part of the claim area (“Mr Ludwick’s claim”). The question arises in these proceedings by virtue of the requirements of s 225(b), (c) and (d) of the Native Title Act.
2. The Council is the successor in title to councils having different names which have performed local government functions over the claim area. In these reasons I will use the term “Council” to describe the body performing such functions from time to time. It will not generally be necessary to identify the particular Council in question. At all relevant times a department of the Government of Queensland has been responsible for Aboriginal affairs and the administration of legislation dealing with that subject. Over the years the name of that department has changed many times. In these reasons references to the “Department” should be so understood. Mr Ludwick’s claim arises out of legislation concerning the occupation and use of Crown land. Such legislation has been administered by another department, the name of which has also changed from time to time. I will refer to that department as the “Lands Department” and to the relevant Minister as the “Minister for Lands”.
3. The claim area is vested in the Council pursuant to a deed of grant in trust dated 27 October 1986. Mr Ludwick lives on a block of land (the “Bukki block”) within the claim area. It is on Bukki Road at Bukki, near Yarrabah. The block is about four and half acres in size and is marked on an aerial photograph which is exhibit HBL 2 to Mr Ludwick’s affidavit filed on 7 March 2008. Mr Ludwick is not a member of the Combined Gunggandji People as defined in the application and does not claim to be a traditional owner of any part of the claim area. He claims to be entitled pursuant to statute to a lease of the Bukki block or to a licence to occupy it. At one stage he also claimed an equitable licence to occupy the Bukki block. That claim was not pursued at trial. In these reasons I consider the validity of Mr Ludwick’s statutory claims.
4. His primary claim is to a lease pursuant to s 361A of the Land Act 1962 (Qld) (the “Land Act 1962”) which provides:

Ownership of improvement not affected by grant.

(1) If it is shown to the satisfaction of the Minister [for Lands] and the trustees of land granted in trust [the Council] that at the date of issue of the Deed of Grant evidencing the grant any improvement on the land was owned by any person, that ownership shall not be prejudiced by the grant.

(2) The person shown to own such improvement shall be entitled to the grant by the trustees of a lease that accords with the provisions of this Division of-
(a) the land on which the improvement stands; and
(b) where the improvement is a building or structure used as a residence or for business or in connexion with educational or religious purposes, a reasonable area of land being the immediate environs of the improvement.

(3) Where in a case to which subsections (1) and (2) apply application is made to the Minister [for Lands] for his approval of the lease pursuant to section 343 it is not competent to the Minister [for Lands] to refuse the application.

5. At a later stage I will say something about the history of the section. Alternatively, Mr Ludwick claims a licence pursuant to s 452A of the Land Act 1994 (Qld) (the “Land Act 1994”) which provides:

Land granted for Aboriginal or Islander inhabitants

(1) Any person who, at the time when land was granted in trust under the repealed Act for the benefit of Aboriginal or Islander inhabitants, occupies any building or structure as the person’s residence, as an authorised resident on the land, shall, notwithstanding the grant in trust, be entitled to continue the person’s occupation of the building or structure upon the same terms and conditions as the person occupied it at the time of the grant until-
(a) the trustee of the land determines otherwise and terminates the person’s right to occupy the building or structure; or
(b) the trustee of the land and that person agree to new terms and conditions for the person’s occupation of the building or structure.

(2) No permit, claim, licence or lease under the Mineral Resources Act 1989 is to be granted or exist in respect of land granted in trust under the repealed Act for the benefit of Aboriginal or Islander inhabitants unless the approval of the Governor in Council thereto has first been obtained.

(3) In considering whether or not to approve a permit, claim, licence or lease in respect of land referred to in subsection (1) the Governor in Council shall have regard to the views of and any recommendation made by the trustee of the land in question.

MR LUDWICK’S HISTORY

6. Mr Ludwick was born on 29 November 1928 near Mt Surprise in this State. He says that he has always identified as an Aboriginal person and has been accepted as such by the Yarrabah community and every other Aboriginal community in which he has lived. Mr Ludwick married Amanda Harris on 20 June 1952. They had two children. They separated in the late 1950s. One of their children, Harry John Ludwick (“Harry Jnr”), now lives on a block of land adjacent to the Bukki block. After separating from his wife Mr Ludwick entered into a de facto relationship with Irene Gibson, which relationship lasted for about 17 or 18 years and yielded six children, including a son (“Harold”). For more than 20 Years Mr Ludwick has lived with Patricia Dianna Yeatman. There are no children of the relationship, but Ms Yeatman has children from a previous relationship.
7. Mr Ludwick was about ten years old when he went with his mother and other family members to live in Yarrabah. They had previously lived in Dimbulah at Eureka Creek. The family moved because Mr Ludwick’s father had gone to the War. Mr Ludwick did not see him again. At that time Yarrabah was run by the Church of England as a mission. Girls and boys were accommodated in separate dormitories. Children were separated from their mothers. Brothers were separated from sisters. Mr Ludwick believes that his mother died whilst he was living in the boys’ dormitory. He lived there until he was about 14 and then was put to work on a mission farm at Oombunghi. His first job away from Yarrabah was as a stockman on Gunnawarra Station near Mt Garrett. He was there for about a year. He then went cutting cane at Gordonvale, which was closer to Yarrabah. He also worked at a sawmill at Mareeba. During the relevant seasons he lived in barracks provided on site. He also worked as a drover at Bessells Station near Georgetown and at Gilbert River Station. He cannot remember all of his employment history.
8. About a year before he married Ms Harris he became head stockman for the Yarrabah mission. The mission kept its own beef cattle for feeding the people at the mission. It also had horses and a bullock team for hauling logs. At that time the livestock was kept at Oombunghi, a farming area. Because the cattle were breaking down fences to get at the vegetables, those conducting the mission decided to move the stock to Bukki. Mr Ludwick went with them and lived there. At that time there were about 10 or 11 houses in the area. It had been part of the mission settlement but had been abandoned. There was a small sulky track near the houses. At that time the only access was by horse. When Mr Ludwick first moved to Bukki he lived on a block of land (the “original block”) which was on the opposite side of the creek from the Bukki block. In those days it was not necessary to obtain permission to live anywhere on the mission or to build a house. Two men who were working with Mr Ludwick helped him to build a house on the original block, using bush materials. Mr Ludwick also planted a small garden. He was too busy to have a more extensive garden.
9. The land on the other side of the creek (including the Bukki block) was used as a large holding paddock for horses. Mr Ludwick built a stockyard within that horse paddock for use in branding and dipping cattle. He built the stockyard in the same year as the first jet aircraft flew into Cairns. He remembers hearing the roar whilst he was fencing. Other evidence suggests that the first jet aircraft flew into Cairns in the mid-1960s.
10. Mr Ludwick and his wife resided together on the original block and were there when both of their children were born. It was on the opposite side of the creek from the mission. When the creek was in flood, there was no access. For this reason Mr Ludwick decided to move to the other side of the creek. At that time the two children were living with Mr Ludwick’s mother-in-law in the mission. They visited their parents from time to time. When Mr Ludwick was about 28 or 29 years old he received a letter from the Director of the Department advising him that he was entitled to claim the original block and that, “no one would move me off it”. At that time the Church was still running the mission. He had not spoken to anybody about living on the original block. He was surprised to receive the letter.
11. Whilst he was living with Ms Harris they moved onto the Bukki block. The house on the original block was falling down. They pitched a tent on the Bukki block and lived there whilst they cleared it with the intention of building another house. By that time the government had taken over the mission from the Church and was destroying the stock. The stockyard was no longer in use. Mr Ludwick was no longer the head stockman. It took about five months to clear the block. He also levelled it, planted lawn and cleared old fences. Before he commenced to build a house on the Bukki block, his wife left him and moved back to the mission to live with her parents. Shortly after his wife left, Mr Ludwick laid a concrete slab and built two small sheds. He accepts that an aerial photograph taken in about 1968 does not show the sheds. He accepts that they must have been built after that date.
12. Mr Ludwick continued to live on the Bukki block for about six months after his wife’s departure, and then went elsewhere to work. He did not intend to leave for long and always intended to return to live on the Bukki block. He worked in Malanda for about 18 months and then returned to the Bukki block for a short time. He obtained other employment with the Main Roads Department at Mt Molloy on the road to Cooktown. Whilst he was so employed he met Irene Gibson who was living at the Hopevale Mission. They became attached to each other, although he was still married to his wife. This seems to have caused some difficulty in the Hopevale Mission, but that is not relevant for present purposes. Subsequently, he and Ms Gibson moved to Alice Springs. He was employed in loading and unloading trains. Whilst residing in the Northern Territory, they had a son who died when he was about four years of age. Ms Gibson returned to Malanda where her sister and brother-in-law were living. Mr Ludwick stayed in the Northern Territory. He and Ms Gibson had been together for about 15 years, during which time they had six children. Their last child was born in 1975. They had lived in Alice Springs and Larrimah in the Northern Territory and Malanda and Hopevale in Queensland. At no time did they live on the Bukki block. Mr Ludwick would visit it for a few days at a time, especially when they were living at Malanda. He was never absent from it for more than about eighteen months to two years at a time, and always intended to return eventually.
13. After separating from Ms Gibson, Mr Ludwick returned to Yarrabah, intending to live there permanently. This was in about 1980. Yarrabah was then run by the Council. At a Council meeting held on 4 September 1980, a motion was passed “granting” permanent residency to Mr Ludwick. It seems that such decision had no real effect other than as an indication of willingness to accept Mr Ludwick as a resident. In a letter to the Director of the Department dated 15 October 1980 the Manager at Yarrabah advised that Mr Ludwick had applied for residency. It was said that he was living with his brother (Arthur Ludwick) at Yarrabah, unemployed, separated and with no dependants. There was no objection to the application. The permit was subsequently issued by the Department. Mr Ludwick considers that he would not have lived with his brother for very long. They would not have got on well together. His brother was then living with his wife (Ruby) near the police station. He stayed with them from time to time, but only for a couple of days at a time. Arthur died some years ago.
14. Mr Ludwick said that if he had not built the sheds at Bukki before his departure for Malanda, then he built them shortly after his return, probably in 1980. He lived in one shed and stored his property in the other. He bought the sheds in Cairns and erected them on the block. He transported them from Cairns in his sister’s utility vehicle. There was no proper road at that time. He subsequently planted a vegetable garden. A couple of years after building the small sheds he expanded the concrete slab and built a larger shed over the top of the other two with the aim of increasing the size of the living area. Initially, he did not fully enclose the larger shed. It was just a roof mounted on posts. At about that time he also built a fence around the whole block using bush timber and wire which he had purchased. The fence is still there, although he has, from time to time, replaced posts.
15. Mr Ludwick was happy living at Bukki but also enjoyed camping trips when he would fish and catch crabs. During the crabbing season he would go away for a few weeks at a time, build a humpy on the beach and go fishing and crabbing every day. At some stage he asked his son and daughter-in-law to look after the Bukki block whilst he was away. On one of his crabbing trips he met Ms Yeatman, probably in about 1987. She wanted to live at Bilma near the beach, and so he stayed with her there for some time, frequently returning to check on the Bukki block. Ms Yeatman built a house at Bilma. After about two or three years they moved to the Bukki block and have lived there ever since. Ms Yeatman gave the Bilma house to her son.
16. Mr Ludwick and Ms Yeatman made improvements on the Bukki block, working on it every day. Over about two years they:
    • enclosed the big shed, which is now their house, and removed the smaller sheds;
    • added a verandah on the front of the house;
    • built a separate carport close to the house;
    • built a generator shed and purchased and installed a generator;
    • built a boatshed next to the carport;
    • planted fruit trees (including guava, orange, mandarin, avocado and others), up to 72 trees in total; and
    • planted other gardens.
17. Everything was done by hand, using materials which they had purchased. They worked constantly on the block in order to maintain it. During a cyclone a large branch from a mango tree fell on the house. Mr Ludwick rebuilt the damaged part. In either 2002 or 2003 the Council installed a septic tank system. It was supplied at Council expense and installed by workers from the Community Development Employment Programme. Quite recently Mr Ludwick and Ms Yeatman built a guest cottage on the block.
18. Mr Ludwick said that when he built his house, he believed that he could remain on the Bukki block “forever”. He said that Yarrabah people had been doing so for years, even after the government took over the mission from the Church. He said that the Council knew that he was building his house and other structures on the Bukki block and did not stop him, or tell him that he could not do so. He bought cement from the Council for his work on the site. The Council upgraded the road, installed the septic tank and provided him with a refuse bin. He has not received any letters or notices from the Council or anybody else, concerning his occupation of the Bukki block, save for notice of the Applicant’s claim. Soon after he received such notice Mr Schreiber (the Council chairman) came to see him and said:

You and Alfie and anyone else who has made headway are going to remain on their blocks. Don’t let anyone move you off. You don’t shift for nobody.

19. The reference to “Alfie” was to Mr Ludwick’s brother. Mr Fourmile, apparently another a person having some position in the Council, also told him “Don’t you move off the land”. At a town meeting there was discussion concerning the location of Mr Ludwick’s front fence (which was too near the road). He was also told not to plant too near to the creek. At one stage, a long time after he went to live on the Bukki block, a young man called Chris Burns came to the block and told Mr Ludwick that his grandfather (Peter Burns) had bought it. Mr Peter Burns had been a carpenter at Yarrabah. He had passed away prior to Chris Burns’ visit. Mr Ludwick told him that nobody could buy land from the government because it was reserved for residents of Yarrabah. Mr Burns left. Mr Ludwick has not heard from him again.
20. In a letter dated 4 March 1981, apparently from Mr Ludwick, to Mr Kilhoran (sic) at the Department, there was reference to an application for a 15 acre block at “Bucky”. The writer asserted that a majority of members of the Council had supported the application, but it had, nonetheless, been refused. The writer sought Mr Killoran’s intervention in connection with the application. Mr Ludwick has no recollection of ever having made such an application. He says that the letter is not in his handwriting but concedes that the signature appears to be his. The Department responded on 5 March 1981, indicating that enquiries were being made. An extract from Council minutes of a meeting held on 8 April 1981 is as follows:

On the motion of Cr. P. Neal, seconded by Cr. V. Schrieber, Mr. Harry Ludwick Jnr. was granted permission to use about 10 acres of land on the Bucki [sic] Road towards Judu.

The non-perennial creek after Bucki [sic] Creek would act as the boundary between Colin Neal’s property and that given to Harry Ludwick. Harry’s property would be on the same side of the road as that belonging to Ernie Bounghi and Colin Neal – All in favour.

21. Mr Ludwick says that he would normally understand the reference to “Harry Jnr” to be a reference to his eldest son (Harry John) who has a block of land at Bukki, adjacent to the Bukki block and on the opposite side of the road to that owned by Mr Bounghi. Mr Ludwick’s son, Harold is never called Harry.
22. On 2 June 1981 the Yarrabah Manager (SA O’Connor) wrote to the Director of the Department (probably Mr Killoran) “Re: Land Application by Mr A. Ludwick”, as follows:

In reply to your letter of 26th May 1981 I can now advise that Council has given permission for Mr A. Ludwick and his brother to use land in the “Bucky” [sic] area for small crop farming. I understand that a camp has been established on the area and a start has been made on the farming enterprise.

A request by Mr Ludwick for assistance with clearing has been denied by this office. However, it has been agreed that logs for the sawmill will be taken from the area in the near future and this will have the effect of providing access to the camp site.

Mr. Ludwick has been advised that he can make application for a special lease of the area however to date he has made no approach in this regard.

I will advise if there are any further developments.

23. Mr Ludwick had two brothers (Arthur and Alf). Arthur lived in the Yarrabah township but never at Bukki. He died a few years ago. His brother, Alf, has a block at Bukki, but it is only about five acres. A letter dated 15 June 1981 from the Director of the Department (probably Mr Killoran) to “Mr. H.B. Ludwick c/- Post Office Box 97, EDMONTON” states:

I refer further to my letter of 5th March, relative to the use of land in the ‘Bucky’ area and am advised that the Council has granted approval for Mr A Ludwick and his brother to use an area of land.

Mr. Ludwick has been given appropriate advice and guidance by the Manager, Yarrabah.

Mr Ludwick said that he had received mail at Edmonton, but not after he returned to live at Bukki.

24. In minutes of a Council meeting held on 28 July 1982, under the heading “Correspondence Inward”, there is reference to an item, “Harry Ludwick re housing”. Mr Ludwick is unable to explain this item. He says that it might refer to his son, Harry Jnr. A letter from the Executive Officer at Yarrabah to the Department dated 4 March 1985, headed “Long Service Leave Entitlement – HARRY LUDWICK” states:

The above person commenced duties as a carpenter with our department at Yarrabah on 17th May 1973.

Mr Ludwick’s services have been continuous and meritorious and it is recommended that he be granted long service leave as from the 17th May 1985.

Mr Ludwick says that this must be a reference to his son, Harry Jnr.

25. A letter dated 16 December 1985 to the Executive Officer at Yarrabah from the Department refers to “Tenancy agreement for Harry Ludwick”. Mr Ludwick says that he has never had a tenancy agreement. The reference may be to his son.
26. On 21 April 1987 an application by Harry Ludwick and Harold Ludwick was lodged with the Council for its approval “that a lease be granted” over unidentified land. The applicants’ dates of birth are shown as 29 November 1928 and 9 May 1969. Mr Ludwick says that one signature looks like his, although he usually includes his middle initial. He does not believe that he ever made such an application and does not understand why there would be an application in the name of Harold (his son), given that he has never lived at Yarrabah and has never wanted to do so. He is married and lives in Hopevale.
27. On 7 July 1992 the Council received a letter, purportedly from “Mr Harry Ludwick Snr, Buckee [sic] Road, Buckee [sic]” as follows:

I am writing to apply for the Position of Caretaker at Clarkie’s [sic] Camp. And if the council agrees with the request, I would like to sign my land at Buckee [sic] over to my sister Eileen and her husband.

Yours sincerely

Harry B Ludwick/Eileen C Ludwick

this was already explained to the Chairman the reason why I want’s [sic] to move from here because Harry Jnr is moving next door & each time his mother (Amanda) get’s [sic] drunk she come down & cause’s [sic] trouble with us.

Mr Ludwick says that he has never seen this letter and does not believe that he signed it or sent it. His sister Eileen has never wanted to move on to the Bukki block.

28. There is a reply from the Council dated 14 July 1992 and addressed to Harry Ludwick as follows:

Re: Land Lease

Your letter regarding your request to hand over the land at Bucky [sic] to your sister Ms Eileen Ludwick was discussed at the Councils Ordinary Meeting on 9th July, 1992.

Please be advised that Council cannot grant your sister this land as she does not qualify to be a resident of this Community (you must reside in Yarrabah trust area continuously for 6 months before you are considered resident).

In regards to your request to be a caretaker at Clarkes Camp, Council has stated that this area is set aside for recreational purposes for all community residents to utilize and that the community based Rangers are responsible for the patrolling of this area.

Council however thanks you for your interest and concern for the area.

29. Mr Ludwick has no recollection of receiving this letter. However it suggests that the Council recognized Mr Ludwick’s occupation of the Bukki block.
30. The documents to which I have referred were presumably supplied to Mr Ludwick’s legal advisers by the State or the Council in the course of these proceedings. At a later stage the State produced further documents which are exhibited to the affidavit of Margaret Jean Reid. Ms Reid is employed by the Department of Communities as a senior policy officer, with responsibility for keeping the records relating to indigenous policy and administration. Since August 2006 she has been involved in researching the files created by the various departments which have had responsibility for Aboriginal affairs since 1898, including litigation concerning the Yarrabah area. She has searched for documents relevant to this matter but was unable to find any letter of the kind referred to by Mr Blucher in para 35 of his affidavit (received when he was 28 or 29 years of age and concerning his entitlement to the original block).
31. There is a note on the file dated 28 March 1981 headed:

Arthur Ludwick
Land Harry Ludwick
Re Land at Buckie [sic]

32. It is a little difficult to read but seems to say:

Percy Neal said would take him out & stake the land.
Neal building a house at Bucky [sic].
Co-op. claiming land.
Near distributing land at Bucky [sic] among their own people.
No one else there.
One of white staff came ...
Shook up a chap ...

33. In a letter dated 10 April 1981 to the Chairman (Mr Neal) the Director of the Department wrote:

I refer further to our discussion following on a telephone conversation with me by Mr. A. Ludwick of Yarrabah relative to land at ‘Bukky’ [sic].

It is regretted that opportunity did not offer for you to have a further talk with me before you went north and I write now to ask that you and the Council discuss with Mr. Ludwick and the Manager the overall position so that his request for land can receive proper consideration.

34. In a further letter from the Department dated 26 May 1981 to the Manager at Yarrabah it was said that:

I would appreciate advice of any developments relative to application by Mr. A. Ludwick in regard to land at “Bucky” [sic] as conveyed the Chairman on 10th April.

35. There is a letter from Mr Ludwick to Dr Jan Walker at the Department dated 7 July 1994 in which he sets out his personal history. The purpose of the letter seems to have been to inquire as to whether there were “funds” to which he and Ms Yeatman were entitled, presumably funds paid by way of wages and held in trust pursuant to former government arrangements. I am, to some extent, relying on personal knowledge rather than evidence in so speculating. The letter shows that from 1943 to 1946 Mr Ludwick worked for canefarmers at Lucinda and from 1947 to 1948 at Gunnawarra Station. From 1948 to 1952 he did station work. He returned to Yarrabah at the end of 1952 but left again to work elsewhere.
36. One aerial photograph shows the two sheds on the Bukki block in 1994. Another aerial photograph, taken in 2002, shows the Bukki block, with the boundary marked in red. There are also a number of photographs taken on the block. They show an attractive tropical environment, well maintained and with substantial planting. The buildings are not of high quality but appear to be sturdy enough. At the request of the parties I visited the block. The photographs provide a reasonably accurate impression of it.
37. In his cross examination Mr Ludwick agreed that the sheds on the land were first erected after the opening of the road. Prior to that time goods were brought to Yarrabah by barge. This suggests that the huts were built somewhat later than Mr Ludwick suggested. It was suggested to him that the road was opened in 1972. Other evidence suggests that a rough road was built in 1966 or 1967. He seemed to agree with the suggestion that he had laid the concrete bases for the sheds in the early 1980s. However other evidence suggests an earlier date. He said that when he returned to Bukki in the early 1980s some of the old fencing was still standing. He removed it all. He agreed that he lived at Bilma with Ms Yeatman from 1986 or 1987 until 1990. In his cross-examination he seemed to agree that whilst at Bilma he had been preparing the Bukki block in the expectation that they would live there (TS 110 ll 35-36), and that they had planned that “our” son (presumably Ms Yeatman’s son) move into the Bilma house (TS 110 ll 25-26). Before meeting Ms Yeatman he had cleared an area in front of the existing house but not behind it. On the right hand side, looking from the road, he had cleared to the creek. He is not sure as to when he planted the vegetable garden but thought that it may have been after he returned with Ms Yeatman. He gave inconclusive evidence concerning the erection of new fences. There was a fence which followed the road as far as the creek and another fence to the left of the house. This was built some time after 1990. He agreed that much of the fencing was probably constructed after he returned with Ms Yeatman. The premises required substantial work. He and Ms Yeatman lived there whilst they were doing that work. Some of the planting in the lower land on the block (to the left of the house) was done after he returned with Ms Yeatman. He also agreed that fruit trees on the land were planted after 1990. He said that whilst he was at Bilma he returned to the Bukki block about once every three or four weeks. However he did not stay on the block during such visits.
38. Mr Ludwick gave further evidence-in-chief, largely relevant to the area of land to which he might be entitled. He said that in about 2004, reticulated water was installed on the Bukki block. Prior to such installation he had taken water from the creek. Before the installation of the septic tank there had been a pit toilet, located about 20 feet from the corner of the house and away from the road. Mr Ludwick built it. He also said that he had grown vegetables and fruit for his own consumption. At one stage he had kept goats for meat, but that had been unsuccessful. He kept chickens for their eggs. He needed the generator to provide electricity. It would have been unsafe and uncomfortable to install it in the house. For this reason he built the generator shed. The house was located so as to avoid damage from falling timber. He has never fished in the creek but has seen other people doing so. He uses coconuts from coconut trees on the land for eating and also as chicken feed. The area to the left of the house cannot be used for agriculture because water accumulates there. Initially, access to Yarrabah was by horse. For that reason he kept horses on the block.
39. I consider Mr Ludwick to be an honest, and generally reliable, witness. It is likely and understandable that time has dulled his memory as to some matters. I did not form the impression that he was seeking to strengthen his case by exaggeration or misrepresentation. I suspect that the Department and the Council have, on occasions, confused him with one or more of his brothers and sons. That does not detract from his claim to the Bukki block. Some documentary evidence gives general support to his claim. I refer in particular to the Council letter of 14 July 1992.

OTHER EVIDENCE

40. Ms Yeatman said that when she first met Mr Ludwick at Yarrabah beach he told her that he had a block of land and a house at Bukki. He wanted her to live with him there. However she wanted to live at the beach. They lived there for some time but were eventually told by “tribal people” (presumably members of the claim group) that they were no longer allowed to do so. Ms Yeatman obtained some land at Bilma where she and Mr Ludwick built a house. They lived there for a couple of years and then moved to the Bukki block so that her younger son could move into the house. Ms Yeatman thinks that they have been together for more than 20 years, and that they moved to Bukki in about 1990. When she arrived there, the big shed had been built with the two smaller sheds beneath it. A fence had been erected. Whilst they were at Bilma, Mr Ludwick visited Bukki from time to time to check on the block. He did not suggest that he was performing any major building work. Hence Ms Yeatman understood that the improvements which she saw on the property when she first arrived had been built prior to her meeting Mr Ludwick.
41. After moving to the Bukki block, they enclosed the big shed and then removed the two small sheds. The big shed is now their home. Within the first year or two they added a verandah and started building separate sheds for use as a carport, a boatshed and a generator shed. They subsequently built a cottage for guests. They planted fruit trees and other gardens. They purchased their cement from the Council and made it clear that they were using it to build on the Bukki block. About four years before the date of her affidavit (4 March 2008) the septic tank was installed by the Council.
42. Mr Ludwick’s eldest son, Harry Jnr, was born in Cairns on 22 November 1952 and raised by his mother, Amanda Harris. She died on 9 January 2007. He is married and has lived in Yarrabah for all of his life. He is now living at Bukki, next to the Bukki block. He has always understood that when he was very young, he lived with his mother and father on a block of land at Bukki, on the other side of the creek from the Bukki block. He recalls that when he was about 13 or 14 years old, in about 1966, his father started to take an interest in the Bukki block. In those days he was “coming and going from Yarrabah”. He recalls that in about 1974, the two small sheds were erected side by side. Harry Jnr was then working as a carpenter for the Department of Community Services. The head carpenter lent him a concrete mixer for his father’s use. The land had already been cleared. A vegetable patch had been established. I accept this evidence as offering the most reliable indication of when the sheds were built. Mr Ludwick’s evidence was clearly unreliable on this score. Harry Jnr said that his father had been living away from Yarrabah, but returned at about the time that his son was born on 21 March 1981. Whilst his father was away Harry Jnr and his wife used the Bukki block for weekends. After his father returned to Yarrabah in about 1981, he lived at Bilma for some time and then built a big shed over the top of the two small sheds and removed the two small sheds. If Mr Ludwick lived at Bilma in the early 1980s, it must have been some years prior to his residing there with Ms Yeatman. The big shed had been built by about 1992 when Harry Jnr came from Mourigan to live at Bukki.
43. Darryl Ralph Pollard was born on 12 June 1961 and moved to Yarrabah with his parents in October 1976. On 13 April 1985 he married Eileen, one of Ms Yeatman’s daughters. They have six children. He has resided continuously at Yarrabah since 1976, save for a period from September 1994 to December 2002. During that period he and his family lived at Kowanyama, nearer to his work. However he returned frequently to Yarrabah. In about 1984 Mr Pollard applied to the Yarrabah Shire Council for a lease over land at Buddabadoo. In 1986 he and his wife decided to build a home. They decided that the Buddabadoo block was too far away from town, and that they would prefer to live at Bukki. Towards the end of 1986 they applied to the Council for a lease over land at Bukki, indicating that they no longer wished to apply for land at Buddabadoo. They said that they had spoken to Peter and Willy Yeatman (who had previously claimed the Bukki land). Messrs Yeatman had said that they did not wish to maintain their claim. The Council stamp shows that Mr Pollard’s letter and a sketch of the land claimed at Bukki were received on 2 November 1987. Mr Pollard asserts that he delivered the letter to the Council in the second half of 1986. They built the house in early 1987 and took up residence in mid-1987. On 1 April 1987 Mr Pollard attended at the Council office to complete a Form 1 application for lease which is exhibited to his affidavit. It is dated 1 April 1987.
44. Mr Pollard remembers Mr Ludwick building a small shed on the Bukki block. This was well before he and his wife moved to Bukki. It may have been in the late 1970s. When Mr Pollard and his wife claimed their block in 1986 or 1987, the small shed was still on the Bukki block. A roof structure had been built over it. The block was fenced, and there were several fruit trees. At the time, Mr Ludwick was living at Bilma. His niece (Alberta Gibson) was living in the small shed on the Bukki block. She was there for about a year. Elaine Marina Pollard, has sworn an affidavit. She recalls there being two small sheds under the roof structure on the Bukki block. She does not recall when her mother and Mr Ludwick actually commenced living there.
45. Roy Alfred Gray was born in Cairns on 3 October 1944 and has lived at Yarrabah for most of his life. His only period of absence was from 1963 to 1979. He was elected to the Council in about 1980 and was a member until some time after it received the deed of grant in trust over the land (27 October, 1986). He served as chairman and as deputy chairman. He understood that prior to the deed of grant in trust, the Council had the legal authority to make decisions, with the guidance of the Manager. When he was first elected to the Council some Yarrabah residents had already moved on to blocks at Bukki. There were sharefarmers on Back Beach Road. Before and during his time on the Council, articles appeared in the Cairns Post concerning the grant of ownership of Aboriginal reserves to Aboriginal councils. He remembers Mr Ludwick building at Bukki on one or two different sites and believes that he had the necessary permission.
46. The Applicant has filed two affidavits, one by Howard Hardy Lloyd Patterson and the other by Robert Lawrence Sands. Mr Patterson said that he was raised at Yarrabah and has lived there all his life. He said that in 1983 he went to Hopevale with Irene Gibson’s nephew. At that time Irene was living at Hopevale with Mr Ludwick and a number of children. On that basis he asserts that Mr Ludwick was not living in Yarrabah in 1980.
47. Mr Sands was born in Cairns on 10 October 1945 and raised in Yarrabah, living there until 1970. He is a Gunggandji elder. Yarrabah is his traditional country. Many of his family still reside there. When he was 18, he qualified as a barge captain and ran the barge from Cairns to Yarrabah. In those days the barge was the only means of bringing materials into Yarrabah. He left Yarrabah in 1970 to work on Palm Island where he remained for about two years. He returned to Cairns in 1972 and was employed by the Cairns City Council until approximately 1984.
48. In February 1985 he commenced a course at the Kangaroo Point College of Technical and Further Education in Brisbane. This lasted for about two years. At the end of 1986 the Queensland Government employed him as a clerk at Kowanyama. He remained there until 1992 and then returned to Yarrabah as Chief Executive Officer of the Council, a position which he held for about two years. He then worked at Kowanyama until 2006, returning to Yarrabah, again to take employment there. Whilst he was in Kowanyama he returned to Yarrabah as often as he could, including over holiday periods. He believes that jet aircraft first flew to Cairns in the mid-1960s. It was not until 1966 or 1967 that there was a rough dirt road to Yarrabah. Prior to that time the only way of bringing materials into Yarrabah was by barge or boat. Little cement was available in Yarrabah prior to the road being established. Initially, it was a rough dirt road, not easy to traverse. As to Mr Ludwick’s assertion that he used his sister’s utility to bring materials from Cairns, Mr Sands says that Mr Ludwick’s sister was living outside of Yarrabah.
49. In relation to para 85 of Mr Ludwick’s affidavit (concerning the visit by Chris Burns), Mr Sands refers to an incident in which a girl related to the Harris family was killed and says that this event occurred near the Bukki block. I do not understand the significance of this matter. He asserts that Mr Stephen Schreiber and Mr Vincent Schreiber were both Gunggandji men but that neither, acting alone, had authority under traditional law and custom to make decisions binding on Gunggandji people. Such decisions had to be made by elders and senior Gunggandji people. Mr Sands said in oral evidence-in-chief that he had fished in the creek when he was growing up as a child, setting eel traps during periods of extra high tide and during wet weather. There were also yellow belly fish in the creek. The area contained black palm trees which were harvested to make spear heads and other weapons
50. The State relies upon a number of affidavits. The first is by Shane Arthur O’Connor who was employed by the Department for approximately 26 years. He worked at senior management level on every State-controlled Aboriginal community and in every regional office of the Department. At one stage he was Assistant Under-Secretary, based in Brisbane. Between December 1976 and January 1982 he was Manager at Yarrabah and had approximately 20 staff and a large Aboriginal workforce. He said that the State took over control of the mission from the Church of England in 1960. The manager of the Yarrabah reserve reported directly to the Director of the Department in Brisbane. Mr O’Connor remembered members of the Ludwick family but did not specifically remember Mr Ludwick. Whilst he was at Yarrabah the area at Bukki was accessible by road. However, when the creek flooded, communications and access were severely inhibited. This influenced the Department’s assessment of the suitability of the area for residential development. He does not recall there being evidence of earlier housing in the area, but there were numerous squatters’ camps. They were not formally sanctioned. The presence of such residents was tolerated unless special circumstances required their relocation.
51. If a person wished to reside on a reserve it was necessary to obtain a permit, theoretically before the person commenced such residence. Frequently people would make application after arrival. Local Councils could not grant such permits. The manager would seek its views and forward them, with the application, to the Director for approval. Mr O’Connor remembered Mr Alf Ludwick as a person who was “someone determined to make a go of it”. He does not recall him farming with his brother. He was surprised at the commencing words of the letter dated 2 June 1981, apparently written by Mr O’Connor to the Director, in which he advised that the Council had given permission for Mr A Ludwick and his brother to use land in the Bukki area. He says that he understood that land at Yarrabah belonged to the State, and that neither the Council nor he could have given it to anybody. Mr O’Connor recalls that government policy at that time was to encourage residents of such communities to start businesses and become self-reliant. The Council was similarly encouraged to take responsibility for the community. A request to use land for a business would have been referred to the Department, with advice as to the Council’s attitude and as to Mr O’Connor’s own views.
52. Lawrence James Glass, Sheree Sharma and Kenneth John Carse have also sworn affidavits, but it is not necessary that I refer to their content.

FACTUAL FINDINGS

53. I find that in about 1974, Mr Ludwick built the two small huts on the Bukki block. I find that he lived there from the early 1980s until some time late in 1986 or in 1987 when he went to Bilma, intending to return. However he met Ms Yeatman and remained at Bilma until about 1990 when he returned to the Bukki block with her. To the extent that Mr Pollard suggests that Mr Ludwick lived at Bilma at some earlier time in the 1980s, I infer that it must have been a discrete period of temporary residence, prior to his relationship with Ms Yeatman. The roof of the current structure was erected over the huts in 1986 or 1987, prior to the commencement of Mr Ludwick’s relationship with Ms Yeatman. At that time Mr Ludwick also extended the concrete slab on which the huts stood. I accept the Pollards’ evidence that the roof was in place when they first decided to build at Bukki in late 1986 or early 1987. I do not accept Mr Pollard’s evidence that the withdrawal of the Buddabadoo application and the sketch map of the proposed Bukki claim (both marked as received by the Council on 2 November 1987) were lodged in 1986. I think it more likely that they followed the form 1 application for the land at Bukki (dated 1 April 1987). It is possible that the withdrawal and the sketch were required by the Council prior to its processing the application for the land at Bukki.
54. I am unable to find that the roof of the present house was erected prior to the date of the deed of grant in trust. However I am satisfied that the two smaller huts and the slab on which they stood were standing on that date. The slab was incorporated into the present house. I also find that Mr Ludwick’s actions in occupying the Bukki block and erecting the huts were tolerated by the relevant authorities (the Department and the Council). I find that prior to the date of the deed of grant, Mr Ludwick had probably also erected fencing, gardens and a pit lavatory on the Bukki block. These improvements were still standing at that date.

THE DEED OF GRANT AND S 361A

55. In assessing Mr Ludwick’s claims, the starting point is the deed of grant in trust dated 27 October 1986. It is common ground that the land described therein includes the Bukki block. Pursuant to the deed of grant the relevant land was vested in the Council in trust for the benefit of Aboriginal inhabitants and for no other purpose. I have previously set out the provisions of s 361A of the Land Act 1962. That section was inserted by the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) (the “Aboriginal Land Grants Act”). With effect from 1 July 1995 the Land Act 1962 was repealed and replaced by the Land Act 1994, s 520 of which provides:

The repeal of the following sections of the repealed Act is limited in the following way –

(a) ...

(b) section 361A continues to apply to deeds of grant in trust granted before this Act commenced.

56. The “repealed Act” was the Land Act 1962. At all material times s 5 of that Act 1962 defined the term “improvements” as:

Any building, yard, fence, well, bore, reservoir, artificial water course or watering-place, apparatus for raising, holding or conveying water, garden, orchard, plantation, cultivation, or any erection, construction or appliance being a fixture for the working or management of a holding or of any stock depastured thereon or for maintaining or increasing the natural capabilities of the land.

57. Both the huts and the slab on which they stood were improvements within this definition, as were the gardens, fences and the lavatory. The definition includes things which would normally be characterized as fixtures, usually owned by the owner of the fee simple or, in the case of Crown land, the Crown. Section 361A clearly contemplates ownership of improvements by somebody other than the Crown or the holder of the fee simple title pursuant to a deed of grant. The intention cannot have been to authorize the grant of a lease to the owner of improvements who already held the fee simple title. In Commissioner of Main Roads v The North Shore Gas Company Limited (1967) 120 CLR 118 at 127, the majority of the High Court (Barwick CJ, McTiernan, Kitto and Taylor JJ) said:

Differences of opinion from time to time have arisen concerning the true meaning and operation of the principle expressed in the maxim “quicquid solo plantatur, solo cedit ...” but, primarily, it is applied to determine the right of the owner of land to things affixed to or imbedded in the soil. Whatever is fixed to the freehold is said to become part of it and is subjected to the same rights of property as the land itself ... . The presumption is said to be rebuttable and, it seems to us, it must be so when a statute empowers someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of the things so affixed or embedded.

58. Section 361A seems necessarily to contemplate such a situation. As was pointed out in argument, ss 236, 237 and 238 of the Land Act 1962 also seem to have contemplated somebody other than the Crown owning improvements situated on Crown land. It has not been submitted that any person other than Mr Ludwick might own improvements erected by him on the Bukki block. Since the hearing in this matter, the Minister for Lands has indicated that he is satisfied that the two sheds stood on the land at the date of the deed of grant and that Mr Ludwick owned them. The Council is also satisfied as to those matters.
59. The State submits that although s 520(b) of the Land Act 1994 continues the application of s 361A to deeds of grant made prior to the commencement of that Act, it does not continue the operation of other relevant provisions of the Land Act 1962. Further, it submits that pursuant to s 511 of the Land Act 1994, references in s 361A to provisions of the Land Act 1962 are to be taken as references to the corresponding sections in the Land Act 1994. Counsel for Mr Ludwick submit that s 20 of the Acts Interpretation Act 1954 (Qld) (the “State Interpretation Act”) preserves his rights pursuant to s 361A. Section 361A provides that the terms of any lease are to be in accordance with “the provisions of this Division”, prima facie referring to Division V (Reservations in Deeds of Grant) which is contained in Part XI (Grants, Reserves and Reservations for Public Purposes). Further, s 361A expressly deprives the Minister for Lands of his capacity to refuse to approve a proposed lease pursuant to s 343 of the Land Act 1962. The State submits that s 57 of the Land Act 1994 now imposes the requirement for ministerial approval, the effect of which would, presumably, also be negated by s 361A. The State submits that the conditions of any lease will be regulated by s 61 of the Land Act 1994, and not by the “provisions of this Division”. Mr Ludwick submits that s 343 (dealing with ministerial approval) and s 344 of the Land Act 1962 (dealing with conditions) continue to apply for the purposes of s 361A.
60. It may not matter whether ministerial approval is required pursuant to s 343 of the Land Act 1962 or s 57 of the Land Act 1994. In either case s 361A(3) will compel ministerial consent. However the conditions permitted by s 344 of the Land Act 1962 differ from those permitted by s 61 in one potentially important respect. Section 343 provides for a maximum term of 75 years whilst s 61 provides for a maximum term of 30 years.
61. A number of curiosities surround the terms and structure of s 361A and its location in the Land Act 1962. Part XI deals generally with grants, reserves and reservations for public purposes including, in particular, deeds of grant in trust and reserves. It is likely that the enactment of s 361A gave effect to a policy decision to transfer from the Crown the ownership of reserves held for the benefit of Aboriginal and Torres Strait people. Such transfer was to be to Councils, primarily or solely representative of, and constituted by, indigenous people. It was probably intended that s 361A would be a mechanism for regularising regimes of informal occupation existing in such reserves. There is no reason to assume that the informal system of land occupation at Yarrabah was, in any way, unique. I draw these inferences from the enactment of s 361A as part of the Aboriginal Land Grants Act. It may have been more appropriate to include s 361A in Division II of Part XI of the Land Act 1962, dealing with appointment, duties and powers of trustees, rather than in Division V, dealing with reservations in deeds of trust. With the exception of s 361A Division V seems not to deal with leases at all.
62. Section 361A(1) preserves ownership of improvements located on land at the time of issue of a deed of grant. Section 361A(2) addresses the question of leases of land upon which such improvements are located. The owner of such improvements is “entitled” to a grant by the trustee of a lease which accords with the provisions of “this Division”. As I have observed Division V says nothing about the terms of a lease. Both Mr Ludwick and the State submit that the reference to “this Division” must be either a reference to “this Part”, that is Part XI, dealing with deeds of grant, or to Division II of that Part, dealing with trustees’ appointment, duties and powers, including the power to lease. In either case, Division II will regulate the terms of any lease pursuant to s 361A. Such a construction is necessary in order to give effect to the legislative intention to grant leases to the owners of improvements.

STATE INTERPRETATION ACT

63. The question as to whether ss 343 and 344 of the Land Act 1962 or ss 57 and 61 of the Land Act 1994 should be applied as imposing a requirement for ministerial approval of any lease and in fixing its term was, in argument, treated as dependent upon the nature of the entitlement derived by Mr Ludwick pursuant to s 361A. Broadly speaking counsel for Mr Ludwick submit that he obtained a right to a lease upon terms to be determined in accordance with the Land Act 1962. On that basis they submit that s 20(2)(c) of the State Interpretation Act applies so as to preserve such right. That section provides that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred thereunder. The State submits that Mr Ludwick has no accrued right to a lease but rather a “right arising from an Act” or a “right to take advantage of an enactment”, such right being the right to take action in accordance with the law as it is at the time. In support of this argument the State relies upon a line of decisions commencing with Abbott v Minister for Lands [1895] AC 425 and ending with the decision of the Queensland Court of Appeal in Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203. I need only make brief comments concerning those cases.
64. In Abbott the Judicial Committee of the Privy Council, on appeal from the Supreme Court of New South Wales, considered legislation which permitted any person to tender for the conditional purchase of unsold Crown land. Such a purchase would normally have been subject to a condition requiring three years of bona fide continuous residence prior to grant of the freehold title. However, where the purchaser already held fee simple land a purchase of adjoining land would not have been subject to the condition of residence. At some stage the relevant statute was amended to remove the advantage previously available to existing landholders. The question was whether or not a landholder could purchase adjoining land upon the previous, more favourable conditions. At 431, the Judicial Committee said:

It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a “right.” But the question is whether it is a “right accrued” within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words “obligations incurred or imposed”. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a “right accrued” within the meaning of the enactment.

65. In Director of Public Works v Ho Po Sang [1961] AC 901, the Judicial Committee considered a matter arising under Hong Kong planning law. The law contemplated the exercise of a vice-regal discretion to permit rebuilding on land occupied by tenants of the owner. Relevantly, their Lordships observed at 922:

It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not.

66. In Mathieson v Burton (1970) 124 CLR 1, the High Court was concerned with legislation which provided that following the death of a lessee of prescribed premises, a child of that lessee, over the age of 21 years, who was residing with the lessee immediately before his or her death, could, until grant of probate or letters of administration, continue to exercise the same rights of possession as the deceased lessee would have done had he or she lived. In 1968 the legislation was amended to narrow the class of protected person. The respondent to the appeal in the High Court was the daughter of a deceased lessee who had died in 1958. There had been no grant of probate or letters of administration. The daughter claimed the right to occupy the premises pursuant to the legislation in its unamended form. The High Court upheld her claim. In particular, at 23, Gibbs J said:

In my opinion when the Act of 1968 was passed the respondent had an existing right to continue in possession of the subject premises. That right had arisen out of, and had been defined by, reference to, facts that had occurred before the Act of 1968 was passed. On behalf of the appellant it was submitted that the so-called right was in truth merely an immunity or protection from eviction which endured only so long as the statutory provision creating it remained in force. With all respect, this submission gives insufficient force to the words of s. 83A(1); that subsection purports to create and confer a right of the same kind as the lessee would have had if he had lived and I can see no justification for ignoring these words and refusing to recognize as a right that which the legislature has expressly described as such. It is true that the right was both personal and temporary – it was not capable of assignment and endured only until representation of the estate of the deceased lessee should be granted or until a court of competent jurisdiction should make an order to putting the respondent out of possession ... However, to say ... that the right “is of a qualified, limited and transitory nature” is to define or explain the nature of the right but is not to deny its existence.

67. In NSW Aboriginal Land Council v Minister Administering The Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685, the New South Wales Court of Appeal considered the terms of Aboriginal land rights legislation. Such legislation had provided that any transfer of land to an Aboriginal Land Council should be in fee simple. In May 1986 the Act was amended to provide that in certain circumstances, such land should be granted by way of lease in perpetuity. On 26 April 1984, the Land Council had applied to the Minister for the transfer of certain land. The Minister refused the claim. The Council appealed to the Land and Environment Court. On 3 September 1987 the Minister decided to approve the application to the extent of granting a lease in perpetuity under the amended legislation. In the Land and Environment Court, the Land Council sought a declaration that it was entitled to a transfer in fee simple. The Court of Appeal held that a statutory right would be preserved, notwithstanding the repeal or amendment of the statute, even if the right could only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision had been set in force before the repeal or amendment. At 693-4, Hope JA, with whom the other members of the Court agreed, said:

In my opinion ... the power which s 36(7) confers upon the Land and Environment Court is not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances specified in the subsection.

What then is the nature of the right which the Land Council had after it had made its claim, when it claim was being investigated by the Minister, and when it lodged its appeal to the Land and Environment Court. It is easier first to say what it was not. It was not a mere right existing in the members of the relevant class of the community “to take an advantage of an enactment, without any act done by an individual towards availing himself of that right”..., nor was it a right to set in train an application for a grant which the Minister or on appeal, the court might, as a matter of discretion, grant or refuse. ...

68. His Honour referred to Ho Po Sang where the relevant party was held to have had only a “hope or expectation” and continued:

The rights conferred by the Aboriginal Lands Rights Act do not fall into this category. On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.

69. At 696 his Honour said:

These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been in set in train before the repeal or amendment.

70. In Esber v The Commonwealth of Australia (1991) 174 CLR 430, the High Court considered the entitlement of a former member of the Defence Force who had applied to redeem weekly payments of compensation so that he might receive a lump sum in lieu as prescribed by the relevant statute. The application was refused. The applicant applied to the Administrative Appeals Tribunal for review of the decision. After application, but before determination, the relevant provision was repealed. The repealing Act provided that proceedings instituted under the earlier legislation, but not completed upon repeal, “may be continued on and after that day and, when the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings”. Reliance was placed upon s 8 of the Acts Interpretation Act 1910 (Cth) (the “Commonwealth Interpretation Act”) which was, in terms, similar to s 20 of the State Interpretation Act. The majority (Mason CJ, Deane, Toohey and Gaudron JJ) held that the relevant section of the earlier Act conferred substantive rights. Their Honours said at 440:

If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister ...:

“The right might be said to be a conditional one, namely conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.”

Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”... . Nor was it a mere matter of procedure ... ; it was a substantive right ... . Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent” ... . This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

71. In Chang v Laidley Shire Council (2007) 234 CLR 1, the High Court considered Queensland planning legislation which provided for compensation where a change in the relevant legislation caused a reduction in value of an interest in land. In considering the operation of s 20 of the State Interpretation Act, the High Court said at 34:

Terms like “right”, “interest”, “title”, “power”, or “privilege” when used in the context of a general interpretation provision like s 20 are to be understood by reference to the statute that has been amended or repealed. They are terms that are not used “solely in any technical sense derived exclusively from property law or analytical jurisprudence” ... .

72. There is also a particularly useful summary of the question in Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291, per McPherson JA at 298 and per Fryberg J at 301-308. I was also referred to the decision of the Queensland Court of Appeal in Australand. That matter concerned a statutory right to avoid a contract for the purchase of a prescribe interest in a managed investment scheme where the invitation to subscribe had been issued in contravention of a provision of the Corporations Law (now repealed). The provision was repealed with effect from 1 July 1998. In certain cases, the transitional provisions continued the operation of the section until 1 July 2000. On 8 September 2003 the appellants purported to avoid their contracts pursuant to the section. At first instance the primary Judge held that such avoidance was of no effect. The Court of Appeal upheld that decision. I was particularly referred to a passage in the judgment of Keane JA at [113]-[117]. That passage offers a useful commentary on the cases to which I have referred but, with great respect, it does not seem to take the matter any further.
73. The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang, there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented “by a non-discretionary decision of an official or a court” would survive, “provided that any statutory machinery has been set in train before the repeal or amendment.” The “non-discretionary decision” seems to be the equivalent of the investigation contemplated in Ho Po Sang. Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber.
74. Clearly, the proper characterization of the rights conferred by s 361A depends upon the proper construction of the section. In approaching that question, one should keep in mind the apparent purpose of its enactment, namely to recognize and preserve the interests of Aboriginal people who have, whilst residing on reserves, expended time, effort and money in constructing improvements thereon. In a broad sense the provision is remedial, designed to deal with an awkward situation created by changes in the non-indigenous community’s attitude towards indigenous people.
75. As I have said, the case was argued substantially upon the basis that either s 344 of the Land Act 1962 operated to allow a lease for a term not exceeding 75 years, or s 61 of the Land Act 1994 applied, allowing for a lease not exceeding 30 years. Such an approach implicitly assumes that the term is to be fixed in some way, perhaps by the Council, and subject to ministerial approval. However that approach is inconsistent with the clear statutory intention that the Minister have no discretion as to the grant of a lease. It also seems unlikely that the Council was to have a discretion to refuse a lease. In either case, power to fix or vary the term could be exercised so as to negate the benefit intended to be conferred upon the owners of improvements. There are no prescribed criteria to guide any such decision-making process. It would be clumsy to try to imply into s 361A some obligation on the Council and/or the Minister to act reasonably. Such an approach might involve a balancing exercise as between community and individual interests. There is nothing unusual about such a process, but this legislation seems to be directed at identifying, acknowledging and protecting individual rights. Whilst s 344 or s 61 may fix the maximum term of any lease, I do not consider that either section limits the actual entitlement of a relevant owner of improvements.
76. Section 361A(1) provides that the relevant time for determining the existence and ownership of improvements is the date of the deed of grant. The improvements must have been on the land at that date. However the subsection also recognizes the possibility that the relevant enquiry may actually be made at some later date. Hence the subsection refers to an improvement which “was owned”. The effect of s 361A(1) is that ownership of improvements is not to be prejudiced by such grant. In other words, the owner continues to own them.
77. Pursuant to s 361A(2) the person “shown to own such improvements shall be entitled” to the grant of a lease. Much of the argument in this matter proceeded upon the basis that satisfaction of the Minister for Lands and the Council as to ownership of the improvements was a condition precedent to any right conferred upon the owner. However such an approach puts too much emphasis upon the form of the section and too little upon its clear intention. There can be no doubt that the intention was that the owner of improvements be entitled to a lease. It was necessary for the Council (as trustee) and the Minister for Lands to be satisfied that a particular person was the person entitled to a lease relating to the improvements in question. However that requirement seems to be a process of the kind contemplated in Ho Po Sang, namely an investigation necessary in order to give effect to an entitlement, rather than a condition precedent to such entitlement.
78. It is true that in the Land Council case, Hope JA added the additional requirement that any statutory mechanism have been commenced in order that the entitlement should survive repeal of the relevant statutory provision. In the present case, there is no requirement that the owner take any step for the purposes of s 361A. It was assumed in argument that the owner of improvements was to undertake the task of satisfying the Minister for Lands and the Council of his or her ownership. However the section does not say that, nor does it provide for any particular mechanism to be initiated by the owner. It is possible that Parliament contemplated that the Council or the Minister for Lands would investigate the ownership of improvements with a view to regularizing the position as to ownership and occupancy. The likelihood of such a statutory intention is increased when one considers that the legislation was, as I have said, designed to remedy some of the disadvantage suffered by a severely disadvantaged group in our society. The reference in s 361A(3) to an “application” for the Minister’s approval of a lease is to an application by the Council. See s 343. I should also point out that use of the present tense “stands” in s 361A(2)(a) suggests that the entitlement arises at the date of the deed of grant.
79. In my view, the effect of s 361A is to confer a right upon the owner of improvements, subject only to satisfactory investigation of the question of his or her ownership. The right which an owner held pursuant to s 361A, prior to the repeal of the Land Act 1962, was a right to a lease in accordance with that Act. Such right would be within either the first or second category identified above. If the entitlement were to one lease for whatever period the Council decided upon, then that right would survive pursuant to s 20 of the State Interpretation Act. However I consider that s 361A should not be construed as authorizing the grant of only one lease.
80. Section 361A confers an entitlement upon a person who owns improvements on relevant land at a particular point in time. The section does not limit the period during which such a person holds that entitlement. If so entitled as at the date of the deed of grant, an owner will be so entitled for the rest of his or her life. This case provides an example of such an entitlement being addressed many years after the date of the deed of grant. It seems to have been assumed in argument that an owner is entitled to only one lease. Such an approach might not fulfil the apparent objective of allowing the owner of improvements to continue to enjoy the benefits of his or her improvements. The shorter the term of any lease, the less would be the capacity to enjoy such benefit. Section 32C(a) of the State Interpretation Act provides that words in the singular include the plural. It would be more in accordance with the intention of the section if it were read as authorizing the grant of a lease at any time during the life of a relevant person, and regardless of whether any lease had previously been granted pursuant to the section. In the event that such a lease expires during the owner’s lifetime, another may be granted. The right to receive a lease is vested in the owner of improvements as at the date of the deed of grant. It cannot be transferred or pass by will or on intestacy. However, where a lease for a fixed term has been granted, and the lessee dies during the term, the right to the balance of the term will be an asset of the estate. Given that the entitlement is to receive a lease from time to time, the better view is that such lease is to be pursuant to the law as it stands at the time at which each lease is granted, and that s 361A should now be read, pursuant to s 511 of the Land Act 1994, as referring to the relevant provisions of that Act.
81. Counsel for the State submits that s 361A requires that the improvements be situated on the land both at the date of the deed of grant and at the date on which any lease is granted. In my view s 361A should be construed as creating an entitlement to a lease as at the date of the deed of grant, and that subsequent removal of the improvements is irrelevant. The huts were still on the Bukki block as at date of the deed of grant. The foundation slab was, and remains, on the block, having been extended and incorporated into the larger hut. It is probable that there were also gardens, fences and a lavatory on the land at the date of the deed of grant. At least some of the fencing and gardens presently on the block probably pre-date the deed of grant. There is no doubt that there were improvements on the land on 27 October 1986, and that the slabs and, probably, some remnants of earlier fencing and gardens remain at the present time.
82. Section 361A(2) provides that the lease be of the land on which the improvements stand and, where the improvements involve a building or structure used as a residence, a reasonable area of land, being the immediate environs of the improvement. As to the purpose for which the land was used, the relevant time is again the date of the deed of grant. At the time that the Pollards moved on to their land at Bukki in late 1986 or early 1987, Mr Ludwick’s niece was living in a small shed on the Bukki block. She resided there for about a year. It is more probable than not that either Mr Ludwick was living there as at 27 October 1986, or that his niece was so residing, or about to commence doing so. Both Mr Ludwick and Ms Yeatman said that their relationship commenced in about 1987. It is reasonable to infer that as at 27 October 1986 the land was being used as a residence. It is possible that it was vacant for a relatively short time, but more probable that it was occupied on that date. In any event a period of temporary vacancy would not detract from the fact that the improvements were being used as a residence. This is particularly so, given that when he left, Mr Ludwick apparently intended to return to the Bukki block after his sojourn at Bilma. His plans changed when he met Ms Yeatman in 1987, but it seems that he (and perhaps they) always intended to move to the Bukki block eventually.
83. The final matter is the area to be leased. It is for the Council to exercise its discretion, having regard to s 361A(2)(b). Again, I do not wish to intervene in the exercise of that discretion. However, as the matter was addressed in the course of argument, I will list some of the relevant considerations without meaning to exclude consideration of other factors. I say nothing about the weight to be given to any relevant factor. In this case, the following matters may be relevant:
    • the sizes of other blocks in the area;
    • access to the creek by Mr Ludwick and others, including traditional owners;
    • the area actually occupied and cleared by Mr Ludwick;
    • other community needs;
    • value of the improvements on the Bukki block as at 27 October 1986 and of improvements erected since that date; and
    • the area needed to facilitate use of the block for residential purposes, including conditions peculiar to the local community.

STATUTORY LICENCE

84. I have already set out the provisions of s 452A. There were similar provisions in the Land Act 1962 (s 21), but I do not understand there to be any dispute arising out of Mr Ludwick’s occupation of the premises prior to the present time. A licence to occupy confers a lesser right than does a lease, particularly where the licence is terminable at will. Clearly, Mr Ludwick was residing lawfully on the Yarrabah reserve prior to the deed of grant. There seems to be no suggestion that his residence on the Bukki block was other than at least tacitly accepted by all relevant authorities including the Department and the Council. There is, however, a question as to whether, at the date of the deed of grant, he occupied any building or structure on the Bukki block as his residence. That is a different question from that posed by s 361A(2) which is whether the improvement was being used as a residence.
85. For reasons previously given, I am satisfied that the Bukki block was probably being used as a residence as at 27 October 1986. Such use was either by Mr Ludwick or his niece. As Mr Ludwick seems to have met Ms Yeatman on the beach at Bilma in 1987, it is reasonable to infer that he resided at Bukki until shortly before such meeting. On balance that finding justifies the inference that he was living there as at 27 October 1986. His own evidence is that when he went to the beach he intended that it be only a temporary visit. When he met Ms Yeatman his plans changed. He still wished to return to Bukki but chose to live with her for a time on the beach, then in her house when it was built. However none of this suggests that as at 27 October 1986 he intended to cease residing on the Bukki block. He regularly returned to the block whilst living at Bilma and, in about 1990, returned with Ms Yeatman to live there permanently.
86. Whilst I would infer that Mr Ludwick was occupying the Bukki block as his residence in October 1986, s 452A contemplates a licence to “continue” such occupation. It may be arguable that a break of three years makes such continuation impossible. That question was not really ventilated in argument. Given my view that Mr Ludwick is entitled to a lease, it is probably not necessary that I reach any conclusion concerning his entitlement to a licence. There has been no recent challenge to his right to remain on the Bukki block. I certainly see no point in deciding the question simply so that Mr Ludwick may submit that his occupation to date is attributable to such a licence, and that his period of occupation should not be deducted from the term of any future lease.

NATIVE TITLE

87. Finally, there is the question of the effect of Mr Ludwick’s entitlement to a lease (or licence) upon any determination as to the existence of Native Title. Although submissions were made concerning that matter, I consider that it will be better to leave it until the parties have had an opportunity to consider these reasons. I will then list the matter for further directions with a view to determining whether any point will be served by resolving the question of Mr Ludwick’s entitlement to a licence, and whether I should now consider the effect of his entitlement in connection with the operation of the Native Title Act. I will also receive submissions as to appropriate forms of order.
    

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 31 August 2009

Counsel for the Applicant:	Ms SB Phillips
Solicitor for the Applicant:	North Queensland Land Council Aboriginal Corporation
Counsel for the First Respondent:	Ms H Bowskill
Solicitor for the First Respondent:	Crown Law
Counsel for the Second, Third, Sixth, Seventh, Eighth, Sixteenth and Seventeeth Respondents:	The Second, Third, Sixth, Seventh, Eighth, Sixteenth and Seventeenth Respondents did not appear.
Counsel for the Fourth Respondent:	Mr R Lilley SC and Mr N Andreatidis
Solicitor for the Fourth Respondent:	Bottoms English Solicitors
Counsel for the Fifth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents:	Mr SJ Keim SC and Ms N Kidson
Solicitor for the Fifth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents:	D & G Lawyers
Solicitor for the Ninth Respondent:	Mr P Gore of Gore & Associates

Dates of Hearing:	30 June, 1 July and 2 July 2008
Date of Judgment:	31 August 2009