Ahwang v Torres Strait Island Regional Council
[2021] QSC 147
•21 June 2021
SUPREME COURT OF QUEENSLAND
CITATION:
Ahwang v Torres Strait Island Regional Council [2021] QSC 147
PARTIES:
ALONZA AHWANG
(applicant)
v
TORRES STRAIT ISLAND REGIONAL COUNCIL
(respondent)
FILE NO/S:
SC 219 of 2020
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON:
21 June 2021
DELIVERED AT:
Cairns
HEARING DATE:
4 May 2021
JUDGE:
Henry J
ORDERS:
1. Application for leave to extend time within which to make application for statutory order of review granted.
2. The decision of the Torres Strait Island Regional Council, of 23 July 2019, to grant a 99 year lease of residential property at Lot 123 on SP256048 (123 Damascus Road, St Pauls) on Moa Island to Anthony Pilot subject to conditions, is set aside.
3. The expressions of interest of Alonza Ahwang and Anthony Pilot in being granted a lease of the aforesaid property are referred to the Torres Strait Island Regional Council for consideration afresh.
4. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15 am 21 July 2021.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the respondent is the trustee of a grant of land in fee simple at St Pauls on Moa Island – where as trustee the respondent is obliged to hold the land on trust for the benefit of the Islander inhabitants – where the applicant and another person submitted to the respondent expressions of interest in leasing the property – where the respondent granted the lease to the other person and not the applicant – where the applicant sought a statutory order of review of this decision – whether the decision to grant the lease was a decision as per s 4 Judicial Review Act 1991 (Qld) – whether the respondent’s decision making process had to be in compliance with s 135 Torres Strait Islander Land Act 1991 (Qld) – whether the decision was made in compliance with the requirements of s 135 Torres Strait Islander Land Act – whether the decision was actually made in compliance with the respondents adopted decision making process
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the application was filed over seven months out of time – whether an extension of time in which to apply should be granted
Judicial Review Act 1991 (Qld), s 4, s 5(d), s 20, s 26
Torres Strait Islander Land Act 1991 (Qld), s 6, s 85, s 135
Mabo v Queensland (No 2) (1992) 175 CLR 1, applied
COUNSEL: C J Ryall for the applicant
M A Jonsson QC, with C Crawford, for the respondent
SOLICITORS: Atherton Tablelands Law for the applicant
Preston Law for the respondent
HENRY J: On 23 July 2019 the Torres Strait Island Regional Council decided to grant a 99 year lease of residential property at St Pauls on Moa Island by passing this motion:
“That pursuant to the Torres Strait Islander Land Act 1991 (Qld), the Trustee grant a 99 Year Lease to Anthony Pilot for Lot 123 on SP256048 (123 Damascus Road, St Pauls) subject to consent from the Department of Housing and Public Works to the sale of the dwelling, payment of the social housing purchase price, and registration of an Indigenous Land Use Agreement to which Council is a party.”[1]
[1]Affidavit of John Levi ex 7, 69.
The Council is the trustee of the St Pauls Deed of Grant in Trust (“DOGIT”), a grant of land in fee simple which includes the property in question. As trustee of the DOGIT, Council is the owner of the property. The DOGIT expressly obliges Council in its capacity as trustee to “hold the land in trust for the benefit of Islander inhabitants”.
The property was long occupied by Mrs Mary Pilot until she travelled to Cairns for medical reasons in 2017, after which the property was occupied by her nephew, the applicant Mr Ahwang. In due course Mr Ahwang submitted an expression of interest in leasing the property to Council. So too did Mrs Pilot’s son, Anthony Pilot.
Mr Ahwang was notified on 5 August 2019 of Council’s decision to grant the lease of the property to Anthony Pilot. Mr Ahwang is aggrieved by the decision.
By an application filed 22 April 2020, since amended, Mr Ahwang seeks a statutory order of review of the decision.
Extension of time
The application was filed over 7 months after the lapse of the 28 day period within which it ought to have been filed, per s 26(2) Judicial Review Act 1991 (Qld). The orders sought include an order, pursuant to s 26(1)(b), allowing an extension of the applicable time within which the application must be made. The question of whether an extension should be granted was not determined before the hearing of the merits of the substantive application.
There was a protracted period between the filing and the eventual recent hearing, during which Mr Ahwang was granted a number of indulgences because of his representatives’ professed challenges in gathering evidence. Those challenges were said, in summary, to be a result of Moa Island’s remoteness, Mr Ahwang’s limited financial capacity and the COVID- 19 pandemic. The first two of those challenges are also relied upon in explanation of the lengthy delay in filing. While not determinative of whether an extension should be granted, it is material that they were apparently genuine and significant challenges.
Since the Council’s decision the status quo has continued, with Mr Ahwang remaining in residence at the property. That was not by order of this court, although in granting the aforementioned indulgences the court was conscious of the delay’s impact upon Mr Pilot’s interests. He has elected not to participate in the proceeding, apparently content that Council’s position in the application is consistent with his interests.
The upshot of that background is that the extension issue can now be resolved with the benefit of consideration in these reasons of the apparent merits of the substantive application. As will become apparent, the application is meritorious; so much so that bearing in mind the nature of the challenges explaining the delay this is a proper case in which to grant the extension sought.
Relevant legislative provisions
Council’s decision is said to be a decision to which the Judicial Review Act applies because it was a decision described within s 4 of that Act, namely “a decision of an administrative character made … under an enactment”.
Council drew the Court’s attention to the conditional nature of the decision; conditional in the sense consent from the Department of Housing and Public Works and registration of an Indigenous land use agreement was required. The decision was no less a “decision” by reason of it requiring conditions to be met.[2] It was also a decision of an administrative character. If it was a decision made under an enactment then it was a decision to which the Jucicial Review Act applies.
[2]For example, 5(d) of the Judicial Review Act 1991 (Qld) specifies that for the purpose of the Act, the making of a decision includes a reference to imposing a condition or restriction.
Mr Ahwang submits Council’s decision to lease the land was made under the Torres Strait Islander Land Act 1991 (Qld). The relevant empowering provision of that Act is s 85, which provides:
“85 Grant of lease by trustee of Torres Strait Islander land
(1) The trustee of Torres Strait Islander land may grant a lease over all or a part of the land for not more than 99 years.
(2) Without limiting subsection (1), the trustee of Torres Strait Islander land may grant a lease (a home ownership lease) over all or a part of the land for 99 years to any of the following for residential use––
(a)a Torres Strait Islander;
(b)a person who is not a Torres Strait Islander if––
(i) the person is the spouse or former spouse of––
(A) a person mentioned in paragraph (a); or
(B)a person mentioned in paragraph (a) who is deceased; or
(ii)the lease supports another part 8 lease granted to the person. …”
Council’s own evidence shows it made its decision under the Torres Strait Islander Land Act and purportedly applied the decision-making process stipulated by s 135 thereof. Section 135 provides:
“135 Decision-making by Trustee
(1) This section applies if this Act provides that the trustee of Torres Strait Islander land is required to make a decision about the land, including, for example, a decision about any of the following –
(a)the way in which the Trustee will consult about the making of a freehold instrument for the land;
(b) whether to grant an interest in the land;
(c) whether to consent to the creation of a mining interest in the land;
(d) whether to enter into an agreement about the land.
(2) The trustee must –
(a) have regard to –
(i)if the Torres Strait Islanders for whom the trustee holds the land have agreed on a decision-making process for decisions of that kind – the process; or
(ii)if subparagraph (i) does not apply – any Island custom, for decisions of that kind, of the Torres Strait Islanders for whom the trustee holds the land; or
(b)if there is no decision-making process mentioned in paragraph (a)(i) or relevant Island custom – make the decision under a process of decision making agreed to and adopted by the trustee for the decision or for decisions of that kind.”
“Island custom’ is defined at s 6 of the Act as follows:
“6 Meaning of Island custom
Island custom, known in the Torres Strait as Ailan Kastom, is the body of customs, traditions, observances and beliefs of Torres Strait Islanders, generally or of a particular group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.”
A threshold issue
While Council purported to make its decision under an enactment, the Torres Strait Islander Land Act, applying s 135 thereof, its counsel argues s 135 does not apply. In consequence it is submitted the application, founded as it is upon non-compliance with s 135, must fail.
Council emphasises the opening words of s 135(1), namely:
“This section applies if this Act provides that the trustee of Torres Strait Islander land is required to make a decision about the land.” (emphasis added)
Is s 85 a provision of the Act which, as it must to attract s 135(1), “provides that the trustee of Torres Strait Islander land is required to make a decision about the land”?
Counsel for the Council submits s 85 does not require the trustee to make a decision about the land – s 85(1) says “may”, not “must” – with the consequence that s 135 has no application. However, it is tolerably clear that the use of “may” in s 85 is used to empower the trustee to be the entity which ought to make a decision whether or not to grant a lease of the land.
A critical premise of the respondent’s submission is that s 135(1)’s reference to “required” is to a positive obligation to actually make a decision. The competing view is that it is a reference to the required identity of the decision-maker, namely the trustee, as distinct from some other decision-maker.
Mr Ahwang acknowledges there are no provisions in the Act which positively oblige the trustee to decide to grant leases. That is scarcely surprising in that inherent in the making of a decision to grant is the choice to grant or not grant.
In the course of argument, Mr Ahwang submitted the Council’s urged interpretation would have rendered the words of s 135(1) meaningless in their application to the rest of the Act at the time they were included in the Act. Council filed supplementary submissions, in response, highlighting ss 93(1)(a), 106(3)(b) and (c), and 121 of the Act’s reprint number 7G (in force on 9 September 2011). Section 93 requires the agreement of both the trustee and lessee of leased land, as well as the Minister’s prior written consent, for a town site lease to be transferred or amended. However, it does not positively oblige the trustee to agree, it merely identifies the trustee as a party whose agreement is a prerequisite to the transfer or amendment of a town site lease. Section 106(3)(b) and (c) oblige nothing, they merely provide that a lease “may” include a condition that it cannot be transferred or a condition that an interest under the lease (other than a mortgage) must not be created without the lessor’s prior written consent. Section 121 obliges a lessor, in circumstances where a lessee has applied within time to renew a residential lease, to consider the application and decide to renew or not to renew the residential lease.
Each of the circumstances to which the sections nominated by Council relate, give rise to a need for a decision which must be made by the trustee (or the trustee as lessor). The existence of those sections therefore neutralises one of Mr Ahwang’s arguments against the respondent’s interpretation. However, it does not positively advance the merit of the premise underpinning the respondent’s interpretation.
It will be recalled that premise is that the requirement alluded to by s 135(1) goes to the necessity of making a decision at all. Such an assumption is not needed in order to give meaning to the section. An interpretation, plainly open on the ordinary meaning of the section’s language, is that the requirement in s 135(1) goes to the identity of the decision maker, that is, the necessity it is the trustee which is the entity which makes the decision (“the ordinary meaning interpretation”).
The point is easily illustrated by adding the following words in brackets to s 135(1):
“This section applies if this Act provides that (it is) the trustee of Torres Strait Islander land (who) is required to make a decision about the land …”
The words in brackets are, however, illustrative of, not essential to, the ordinary meaning interpretation.
It is contextually significant that s 135 falls within the Act’s Part 9 “Decision-making process”. The preceding section of that part, s 134, is a deeming provision dependent upon the nature of the process of decision-making by which a decision was made. Section 135’s heading, “Decision-making by trustee”, further illustrates the focus of the part is upon the process of decision making. These are powerful contextual indications that s 135 should be read as referring to a situation in which a decision already falls to be made, so that the word “required” relates not to the need for a decision to be made but to the need for the trustee to be the entity which makes it. Re-reading s 135, in light of the context that it is referring to a decision which is to be made, fortifies the conclusion that the ordinary meaning interpretation is the correct interpretation. Thus, the section applies when a decision which falls to be made about land is a decision which it is for the trustee to make.
Council’s supplementary submissions also relied upon the content of the explanatory notes to the amending legislation which introduced a new Part 5 “Decision-making process”. Section 80 in Part 5 later became s 135 in Part 9. The explanatory notes relevantly provided:
“Insertion of new Pt 5 decision-making process
Part 5 provides for an alternative decision making process; and for when a trustee must make a decision about the land, then the trustee must have regard to any relevant Island custom or otherwise any decision making process agreed on by the people for whom the trustee holds the land.”
It is not apparent how that passage provides any support for Council’s now urged interpretation in preference to the ordinary meaning interpretation. Indeed, it is entirely consistent with the ordinary meaning interpretation, in effect contemplating that in circumstances when it is the trustee who must make a decision about the land, the trustee is obliged to have regard to any relevant Island custom or agreed decision-making process.
Finally, Council contended the interpretative approach urged by Mr Ahwang would produce the curious result of making more onerous a decision making process the legislature evidently intended to simplify by not making community consultation mandatory. It is not apparent, however, that the requirements of s 135 are particularly onerous. All it requires is that regard be had to the Islanders’ agreed procedure or custom for the decision and in the absence of either, that there be compliance with a process of decision making agreed to and adopted by the trustee.
The respondent’s interpretation should be rejected. The ordinary meaning interpretation is the correct interpretation. Council’s decision-making process had to comply with s 135.
The decision-making process here
The evidence shows Council purported to comply with s 135 in deciding whether to grant a lease to Mr Ahwang or Mr Pilot.
In exercising its power to make decisions Council was aided by policies and associated materials prepared by the Department of Natural Resources, Mines and Energy to guide the trustees of Torres Strait Islander DOGIT land. Council adopted Trustee Policy PO19 at its meeting of 15 November 2018.[3] That policy provides the following relevant guidance regarding decisions to lease:
“6. TRUSTEE DECISION MAKING
(a)As Trustee, Council will fulfill its responsibilities in an informed and effective manner.
(b)DOGIT Trustees are not required under the Torres Strait Islander Land Act1991 (Qld) or Aboriginal Land Act 1991 (Qld) to consult with or notify the community when considering an expression of interest to lease trust land. However, each Divisional Councillor must have comprehensive knowledge about the values of, and appropriate uses for, the DOGIT land, existing interests in the land, and community opinion about proposed leases for that DOGIT.
(c)The type of community engagement that is appropriate for a proposed project or lease will be determined at the discretion of the Divisional Councillor.
(d)A proposed Trustee decision that affects a specific DOGIT will not be tabled for Council’s consideration unless it has the support of the Divisional Councillor.
(e)Where the Divisional Councillor has a conflict of interest or material personal interest, the matter will be referred to the Mayor or Deputy Mayor for direction regarding appropriate consultation, including consideration of a community ballot option to confirm support for the proposal. …”
[3]The draft which became PO19 was then numbered PO29 – per affidavit of Julia Maurus ex 3 [14].
Policy PO19 also provides, under its s 12 “Procedure”, that the policy “shall be achieved with reference to” a number of other documents, including the Queensland Government’s Leasing Torres Strait Islander Deed of Grant in Trust Land “A manual for trustees”. The “Detailed leasing processes” of the manual provides, at “Step 3: Consideration of the EOI” at 3.1, inter alia:
“When an application is submitted, seeking the grant of a lease over Torres Strait Islander DOGIT land, trustees must consider whether:
· granting the lease would be for the benefit of Torres Strait Islander inhabitants of the DOGIT …” (emphasis added)
The words emphasised in that passage reflect an obligation identical to that imposed upon the trustee under the terms of the DOGIT.
The manual’s “Detailed leasing processes” also include at “Step 2: Receipt and review of the EOI”:
“If an EOI is submitted by a second potential lessee after a correctly made EOI has already been received for an area of land, they should be informed that their EOI cannot be considered until a decision has been made on the existing EOI. …
Trustees should make their own policy about how to respond to a second potential lessee, should they lodge an EOI for an area of land that has already had an EOI lodged for it.”[4]
[4]It is unclear whether the competing expressions of interest in this case were lodged simultaneously or one after the other. It appears from the affidavit of Julia Maurus ex 3 [16]-[17] that Mr Ahwang’s expression of interest was received first, whereas Council’s preliminary assessment reports, pp 53 and 57 of the exhibits to the affidavit of John Levi ex 2, suggest they were received on the same date. The anomaly was not pursued in argument. In any event, if one expression of interest was received soon after another it is likely that the competing merits of the latter received application would inform decision making on the merits of the earlier received application.
Two councillors, the Mayor and the relevant divisional councillor, John Levi, did come up with a method of dealing with the competing expressions of interest but that method was not a policy made by the trustee Council, nor was it executed in accordance with a process of decision making which had been agreed to and adopted by the Council.
Mr Levi deposed it is unusual for two people from the same extended family to submit an expression of interest to lease property. He deposed that because there were two competing expressions of interest, he discussed what Council should do to resolve the issue with Mayor Fred Gela. Mr Levi deposed they discussed Policy P019 and the Mayor suggested, with Mr Levi’s agreement, that they should put in place a three-stage process. This was notified to Mr Ahwang by letter of 18 March 2019 as follows:
“Stage 1: Family consultation (18 March to 17 April)
We encourage families to come together privately to discuss the land and the EOI in accordance with cultural protocol and seek to reach agreement on the traditional ownership of the land, before the EOI is put to community consultation.
Stage 2: Community meeting (to be held between 18 April and 17 May)
This meeting will be an opportunity to confirm whether the community supports your lease EOI or the other lease EOI received by council.
Stage 3: Trustee resolution (council meetings are currently scheduled for 20/21 May and 18/19 June)
The trustee will make a resolution to confirm whether the council conditionally approves your lease EOI.”
What was meant by “cultural protocol” in stage 1 is not apparent. The evidence about the execution of stage 1 is muddy. Mr Levi deposes merely that he “became aware” that Mr Ahwang and Mr Pilot attended “the ‘stage 1 meeting’ with each other and their families” which, on Mr Levi’s understanding, “was conducted by Jackson Ware, the President of the St Pauls Elders Group”. Mr Ahwang deposes the meeting was convened by the respondent on 17 March 2019. Mr Ahwang understood the meeting was to be between himself and Anthony Pilot. Mr Ahwang’s account of the meeting describes others attending and asserts he felt disadvantaged. In any event, no agreement was reached.
The stage 2 community meeting was convened on 28 May 2019, after public notices bearing Council’s logo had been posted advertising the meeting. Council did not specifically invite Mr Ahwang to the meeting but he became aware of the notice. The notice read:
“Public Notice
COMMUNITY MEETING
LEASE APPLICATIONS
123 Damascus RoadDate Claimer:
Tuesday 28th May 2019
St Pauls Community Hall9:00am to 12:00pm
Council has received separate applications for a lease of 123 Damascus Road (described as Lot 301 on SP256048) from:
ØAlonza Ahwang
ØAnthony Pilot
Council invites all interested community members to attend a community meeting to help Council decide the lease applications. This will be an open discussion facilitated by Councillor John Levi to seek community feedback on the lease applications.
Feedback can also be made in writing to the Council office or by email to [email protected]
Any feedback or objections must be submitted by 4 June 2019.
Questions can be directed to Julia Maurus on 07 4034 5763.Issued by:
Cr John Levi
Division 7 – WUG (St Pauls)
Date: 8 May 2019”The meeting was held on 28 May 2019. The names of 61 attendees were recorded. Mr Ahwang makes complaints that some meeting attendees behaved disrespectfully, that Paul Ware, a Council employee, took a proactive role in advance of and at the meeting in support of Mr Pilot’s position and that most of the voters were not members of the St Pauls community. Those complaints are not supported by the respondent’s deponents.
The meeting culminated in what is said to have been a secret ballot “with community members writing the name of the candidate they supported on a piece of paper”. The declared voting result was:
“Anthony Pilot 63 votes
Alonza Ahwang 11 votes”
How there came to be a total of 74 votes by secret ballot at a meeting recorded as attended by only 61 people remains unexplained.
Council highlights that it remained theoretically possible for members of the community to make their own submissions directly to Council. In this regard the respondent points to the content of the public notice that “feedback or objections must be submitted by 4 June 2019”, a proposition said to have been repeatedly orally by an officer of Council at the public meeting. It appears the only objection or feedback received was a single email to the Mayor and the Chief Executive Officer from “Elder Abiu Ned Ware, Elizabeth Ahwang, Moylang Rosilind Annie Ware and Alonza Ahwang” requesting the meetings regarding the lease application “be declared invalid”. The email complained the mediation meeting had been facilitated by Council’s employee, Paul Ware, who also led the opposition to Mr Ahwang’s expression of interest. The email complained that the public meeting was stacked by Paul Ware’s followers and workers and that there was elder abuse, disrespect, verbal abuse and intimidation “so bad that the elders were in tears after the meeting”. A letter by the Chief Executive Officer in response explained no comment could be made in relation to the mediation meeting as Council did not conduct it. As to the public meeting, the responding letter asserted:
“Mayor Gela and I have considered your feedback about stage 2 of the process. We have been advised that:
·the meeting and voting procedure were explained to all present at the meeting;
·the meeting was open to all community members;
·Alonza Ahwang was present at the meeting with his supporters;
·at the meeting there were some arguments and shouting, but Council’s legal representative did not observe any threats or intimidation;
·both applicants and all community members were given an opportunity to speak at the meeting; and
·our legal services team personally briefed Alonza Ahwang, verbally and in writing, on 24 May 2019, ahead of the community meeting.
I consider that the stage 2 process has been undertaken in accordance with the principles of natural justice and I reaffirm that the trustee process has taken place to date.”
There is no evidence of any submissions from members of the public about the actual merits of either expression of interest being provided to Council.
A briefing note in the form of a trustee report, by Council’s legal services manager, was provided to the Council meeting which made the decision. It summarised the process which had been followed and proposed the resolution which was in due course carried at the meeting of 23 July 2019. The trustee report noted that even if the resolution was adopted, it would remain for consent to the grant of the lease to occur through an Indigenous Land Use Agreement.
There is no evidence of any discussion or debate occurring as to the merits of the decision proposed in the trustee report when the resolution was put. Council’s minutes merely record that the motion was carried.
The application
Despite the factual oddities and disputes amidst the filed evidence neither party sought to cross-examine the other’s deponents. Argument effectively proceeded in reliance upon those matters of fact which were not materially in dispute.
Mr Ahwang’s grounds in support of the application are that the making of the decision was an improper exercise of the power conferred by s 135 Torres Strait Islander Land Act 1991 (Qld), that the decision involved an error of law as to the scope and effect of s 135 and that the conduct of the Council for the purpose of making the decision failed to comply with the procedural obligations of s 135. Such grounds found a basis under s 20 (2) Judicial Review Act 1991 (Qld) for a statutory order of review.
Mr Ahwang’s submissions narrowed during argument to two complaints. Mr Ahwang’s first complaint is that the trustee Council made no enquiry as to whether:
(i)the Torres Strait Islanders for whom it holds the land have agreed on a decision-making process for a decision about whether to grant an interest in the land - such a process, if it existed, being a relevant consideration under s 135(2)(a)(i);
(ii)any Island custom existed for decisions about whether to grant an interest in the land - such custom, if it existed, being a relevant consideration under s 135(2)(a)(ii).
Mr Ahwang’s second complaint is that the decision-making process adopted was not a “decision-making process” as contemplated by s 135(2)(b).
Consideration
Mr Ahwang’s first complaint is that Council made no enquiry into whether there existed a relevant pre-existing Islander decision making process or custom of the kinds referred to in s 135(2)(a)(i) and (ii).
A difficulty confronting this complaint is that Mr Levi deposed, without contradiction, that there is no pre-existing Islander decision making process or custom of the kind referred to in s 135(2)(a)(i) and (ii).[5] Mr Ahwang highlights Mr Levi only deposed to that effect to the best of his knowledge. It was submitted he had a duty to inquire as to the existence of a relevant decision making process or custom and there is no evidence of any such inquiry.
[5]Council’s legal services manager Ms Maurus deposed similarly but the flaw in Mr Ahwang’s complaint can be adequately exposed by reference to the evidence of Mr Levi and the way it was dealt with in the application.
It is not apparent why Mr Levi’s existing knowledge base would have been so poor that he was obliged to make inquiries into the existence of something which he believed did not exist. He has been a divisional councillor since 2016. He is a long-standing resident of St Pauls and both his parents were born there. It is not inherently implausible that his knowledge as to the existence or otherwise of the relevant process or custom was soundly based.
It is important to appreciate that the decision-making process referred to in s 135(2)(a)(i) is one which “the Torres Strait Islanders for whom the trustee holds the land” have agreed on. If the beneficiaries of the trust had agreed on such a decision-making process for decisions whether to grant an interest in land the subject of the DOGIT it is reasonable to expect such an agreement would have been well known to Mr Levi.
It is also important to bear in mind that the decision-making process or custom referred to respectively by s 135(2)(a)(i) and (ii) is, in each instance, qualified by the words, “for decisions of that kind”. In the present context, that kind of decision is a decision whether to grant a lease of part of the land to a particular person. It may be characterised as a decision about the matters listed in s 135(1)(b) and (d), a lease at once being a form of agreement about the land as well as involving a grant of an interest in the land.
The wording of s 135(2)(a)(ii) in the present context therefore requires that regard be had to any Island custom “for decisions” to grant a lease of a particular lot of land on the Island. There may of course be Island customs which could assist the trustee in weighing the respective merits of each expression of interest as part of its decision making about whether and to whom it should grant a lease. However, it might be thought less likely that there exists an Island custom “for” a decision to grant a lease to an individual. Thus, while Island custom may be relevant to considerations relevant to the respective merits of the two expressions of interest in this case, it is by no means obvious that there would exist an Island custom “for” such a decision. There is therefore no basis to assume that there must so obviously have existed an Island custom for the decision that Mr Levi was wrong in thinking there was not.
Mr Levi was not required for cross-examination. It was thus not even put to him that he had an inadequate foundation for the state of knowledge to which he deposed. Nor was evidence advanced to show there in fact existed some relevant decision making process or custom as contemplated by s 135(a), so as to support the inference Mr Levi’s state of knowledge was so poor that he could not have been properly informed without making inquiry.
For all of these reasons, Mr Ahwang’s first complaint must fail.
Mr Ahwang’s second complaint is that that the decision-making process adopted was not a “decision-making process” as contemplated by s 135(2)(b). The essence of this complaint is that the decision turned upon purported popular opinion without properly informed consideration of the underlying merit of the proposed decision. It was submitted that decisions of the kind referred to in s 135 – relevantly, decisions whether to grant an interest in land or to agree to enter into an agreement about the land – are of their nature decisions that require consideration on the merits.
That submission should be accepted. It could scarcely be thought that any decision making process whatsoever would suffice to meet the meaning of the “process of decision making” referred to in s 135(2)(b). Section 135 requires decision making by a trustee burdened with the duty of holding the land in trust for the benefit of Islander inhabitants. It is implicit in that context that the decision making process called for by s 135(2)(b) is a process allowing the trustee to make a decision which is sufficiently informed as to its merits to be a decision which is for the benefit of Islander inhabitants, that is to say, in the interests of the Islander inhabitants generally.
That conclusion is also consistent with the legislative intention and historical circumstances identified in the preamble of the Torres Strait Islander Land Act. The legislative intention is identified at paragraph 9 of the preamble as follows:
“9. It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Torres Strait Islanders in relation to land and thereby to foster the capacity for self-development, and the self-reliance and cultural integrity, of Torres Strait Islanders.”
Some of the historical circumstances earlier identified in that preamble are:
“1. Before European settlement land in what is now the State of Queensland was occupied, used and enjoyed by Torres Strait Islanders in accordance with Island custom
…
3. After European settlement many Torres Strait Islanders maintained their ancestors’ customary affiliation with particular areas of land.
4. Some Torres Strait Islanders have a historical association with particular areas of land based on them or their ancestors having lived on or used the land or neighbouring land.
…”
Historical circumstances such as these readily explain the emphasis within the Torres Strait Islander Land Act, including at s 135, on Island custom. That the Islanders’ customary affiliations with and history of use and occupation of the land so prompted this legislation supports the conclusion that matters such as the values attributed to the land by Islanders and their interest in and use of the land would be relevant considerations in the decision making process called for by s 135(2)(b). It is difficult to see how a decision arrived at without regard to such matters could be sufficiently informed as to its merits to be a decision reached in the best interests of the overall community of Islander inhabitants for whom the land is held on trust. Indeed, it is no surprise such matters are, according to s 6(b) of trustee Policy PO19, matters about which councillors are supposed to have comprehensive knowledge in reaching decisions to lease trust land.
The decision making here was based solely on some feedback from part of the community as to which of the expressions of interest had more popular support. It was emphasised for Council that Islanders did have an opportunity, other than via the community meeting, to make submissions to Council. But Council cannot point to any submissions which bore upon the merits. In any event, even if some Islanders had taken the opportunity to make representations as to the merits, it does not follow that the ensuing decision would on that account be sufficiently well informed on the merits to be a decision reached in the best interests of Islander inhabitants.
The trustee report to the Council meeting which made the decision did not analyse the merits of the proposed decision. It merely recited the process which had been followed; a process premised solely upon ascertaining the opinion of some persons in the community. The decision making process was inadequate to the task of reaching a properly informed, merit based decision and thus did not conform with the process of decision making contemplated by s 135(2)(b).
This conclusion exposes an error of law by Council as to the scope and effect of s 135. For the same reasons it exposes a failure by Council as trustee to meet the procedural obligation implicitly arising from that provision to make a decision which is sufficiently informed by the merits to be a decision in the best interests of Islander inhabitants.
The conclusion has the result Council’s decision was void for want of compliance with s 135(2)(b). In light of that conclusion and the apparently genuine and significant challenges which caused the delay in filing of the application, the extension of time sought for the making of the application should be allowed, the decision should be set aside and the two expressions of interest referred to Council for consideration afresh.
Both expressions of interest should be referred, rather than Mr Ahwang’s only, because, despite some vagaries in the evidence as to whether one was received before the other,[6] argument proceeded on the basis both expressions of interest were properly before Council for consideration in the same decision making process.
[6]See footnote 2 above and step 2 of the manual’s “Detailed leasing processes” (quoted above).
Apparent non-compliance with Policy PO19
Given that Council must now make its decision afresh, it is as well to identify a related additional apparent difficulty with the decision making process which did not receive direct attention in argument.
Section 135(2)(b) required the decision to be made “under a process of decision-making agreed to and adopted by the trustee”. There is no evidence that the three stage process adopted by Mr Levi and the Mayor was itself “agreed to and adopted” by Council. However, even if it had been, it would not, for reasons already explained, have possessed the quality of the decision making process required by s 135. Nor would it have complied with the requirement, at step 3.1 of the “Detailed leasing processes” part of Leasing Torres Strait Islander Deed of Grant in Trust Land “A manual for trustees”, that trustees consider whether granting the lease would be “for the benefit of Torres Strait Islander inhabitants of the DOGIT”.
It will be recalled that manual was referred to in Trustee Policy PO19 and it was Policy PO19 which Council had in fact agreed to and adopted. As mentioned above, Policy PO19’s s 6, on “Trustee Decision Making”, provides at s 6(b):
“DOGIT Trustees are not required under the Torres Strait Islander Land Act 1991 (Qld) or Aboriginal Land Act 1991 (Qld) to consult with or notify the community when considering an expression of interest to lease trust land. However, each Divisional Councillor must have comprehensive knowledge about the values of, and appropriate uses for, the DOGIT land, existing interests in the land, and community opinion about proposed leases for that DOGIT.”
Four points warrant emphasis about the second sentence of paragraph (b) of the policy. Firstly, the obligation of each divisional councillor to have the relevant comprehensive knowledge is a significant requirement. If a councillor did not already have that knowledge when considering a motion deciding an expression of interest to lease trust land the councillor would be obliged to acquire it. Secondly, the land to which that knowledge relates must logically be that part of the DOGIT land which is the subject of the proposed lease. Thirdly, the requisite knowledge goes beyond the element of knowledge of community opinion about the proposed lease. There are three other elements of the comprehensive knowledge required, namely values of, appropriate uses for and existing interests in the land.
The inclusion of those additional knowledge elements might be thought elementary to responsible decision making by any Council. It also reflects this Council’s duty as a trustee holding the land in trust for the benefit of Islander inhabitants and the importance of the Islanders’ aforementioned historical and customary connection to the land. Council’s duty as trustee is a duty owed to the Islander inhabitants generally, not just some of them. Knowledge of the opinion of some of the Islander inhabitants without accompanying knowledge of the values of, uses for and existing interests in the land is unlikely to equip Council with adequate knowledge to fulfil its duty as a trustee when making decisions about the leasing of the land. If councillors lack such knowledge, they lack the means of assessing the merits of expressions of interest to lease. Putting it differently, they lack the means of reaching a decision which is sufficiently well informed as to meet their duty to reach a decision in the interests of Islander inhabitants.
The fourth point of emphasis is that merely because the knowledge required by s 6(b) does not expressly include island custom does not mean island custom is irrelevant to that knowledge. It may be that island custom, which includes customs and beliefs relating to particular persons and areas, will inform the values of, appropriate uses for and existing interests in the land. For example, in Mabo v Queensland (No 2)[7] the elaborate and complex social organisation of the Meriam people on Mer Island was identified as being intrinsically related to, and dictated by, practices of gardening and land cultivation, both for subsistence and social rituals. In the context of native title, the High Court accepted Torres Strait Island custom of land cultivation as evidence the native inhabitants of Mer Island controlled access to, and prescribed uses for, their lands and the resources it afforded.[8] Given the inevitability in such a culture of generational transition in connection with the occupation and use of land it may even be that island custom will be especially relevant, in informing the knowledge elements of s 6(b), where there are competing expressions of interest by descendants of those who previously occupied and used the land. In any event, the fourth point of emphasis is that even if there is no island custom per se “for” the decision, such as to trigger the operation of s 135(2)(a)(ii), there may still be aspects of island custom which inform the knowledge base that, by reason of Policy PO19, is a pre-requisite for the making of the decision pursuant to s 135(2)(b).
[7](1992) 175 CLR 1.
[8](1992) 175 CLR 1, 18, 94, 190-191.
Mr Levi, the divisional councillor for the division where the land to be leased is located, wrongly thought the three-stage process adopted by him and the Mayor complied with Policy PO19. He deposed:
“I consider that the 3-stage process would mean that Council complied with Policy PO19, because it would mean I had comprehensive knowledge about the St Pauls community’s opinion about the lease (whether it should go to Mr Ahwang or Mr Pilot), and that it was the best type of community engagement in the circumstances.” (emphasis added)
Knowledge of community opinion about the proposed lease is only one element of s 6(b)’s requisite comprehensive knowledge. Mr Levi did not depose how the process adopted here ensured that he, or for that matter councillors generally, had the comprehensive knowledge, required by Policy PO19, of the values of, appropriate uses for and existing interests in the land. Nor did any other deponent.
It is reasonable to infer, albeit that no-one deposed to it, that the councillors whose vote made the decision had some general knowledge of the values of, appropriate uses for and existing interests in the overall land the subject of the DOGIT. But Policy PO19 required that they have comprehensive knowledge of those additional knowledge elements in connection with the land the subject of the proposed lease. The evidence does not support an inference they had such knowledge.
It is possible that some of the community feedback which was given orally may have included information about those additional knowledge elements but, if so, there is no evidence to suggest the voting councillors were seized of such information. It is also possible that the respective degrees of popular support for the applications reflected knowledge of those additional knowledge elements, but again, there is no evidence to suggest the voting councillors were seized of such knowledge.
One means of meeting the need for councillors to have comprehensive knowledge of the additional knowledge elements would have been a properly researched briefing note to Council on the values of, appropriate uses for and existing interests in the land the subject of the proposed lease, incorporating reference to any aspect of island custom informing those values, uses and interests. However, the only document close to such a briefing note was the aforementioned trustee report to the Council meeting. That report merely summarised the process which had been followed and at the highest only provided knowledge of some community opinion. It said nothing as to the values of, appropriate uses for and existing interests in the land. It did not equip Council as trustee with the comprehensive knowledge which was a necessary requirement of the process of decision making required by Policy PO19.
The result is that the process of decision-making appears to have failed to comply with the process of decision making agreed to and adopted by the trustee. I only say “appears”, rather than expressing a concluded view, because argument advanced on the review, while in a sense related to this problem, did not specifically identify it and there may exist facts in answer to it which were not advanced in the review.
Orders
It will be necessary to hear the parties as to costs if costs are not agreed.
My orders are:
1.Application for leave to extend time within which to make the amended application for statutory order of review granted.
2.The decision of the Torres Strait Island Regional Council, of 23 July 2019, to grant a 99 year lease of residential property at Lot 123 on SP256048 (123 Damascus Road, St Pauls) on Moa Island to Anthony Pilot subject to conditions, is set aside.
3.The expressions of interest of Alonza Ahwang and Anthony Pilot in being granted a lease of the aforesaid property are referred to the Torres Strait Island Regional Council for consideration afresh.
4.I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15 am 21 July 2021.