Stewart v Wreck Bay Aboriginal Community Council
[2014] ACTSC 334
•18 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stewart & Ors v Wreck Bay Aboriginal Community Council & Ors |
Citation: | [2014] ACTSC 334 |
Hearing Date: | 16 June 2014, 12 November 2014 |
DecisionDate: | 18 December 2014 |
Before: | Burns J |
Decision: | See [96] – [97] |
Category: | Principal Judgment |
Catchwords: | ABORIGINALS – Land Rights – whether plaintiffs are entitled to a lease of Aboriginal land – whether defendants have authority to remove plaintiffs from Aboriginal Land HUMAN RIGHTS – Human Rights Act 2004 (ACT) – whether the Wreck Bay Aboriginal Community Council is a public institution pursuant to s 40 – held not a public institution |
Legislation Cited: | Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) ss 4, 7, 17, 27, 28, 38, 40 Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2005 (Cth) By-laws 5.25, 5.26, 6.01 |
Texts Cited: | Moorcroft, Heather and Feary, Sue with the Wreck Bay Aboriginal Community, Looking after people, looking after country – A cultural heritage management strategy for the Wreck Bay Aboriginal Community 2009 – 2014 (September 2008) |
Parties: | Walter Stewart (First Plaintiff) May Stewart (Second Plaintiff) Harold John Stewart (Third Plaintiff) Steven Stewart (Fourth Plaintiff) Douglas Green (Fifth Plaintiff) Corey Green (Sixth Plaintiff) Wreck Bay Aboriginal Community Council executive committee (First Defendant) Wreck Bay Aboriginal Community Council (Second Defendant) Craig Ardler, Annette Brown, Joseph McLeod Brown, Clive Freeman, Julie Freemen, Todd Roberts, Darren Sturgeon and James McKenzie (Third Defendants) |
Representation: | Counsel Self-represented, assisted by Ms J Stewart (Third Plaintiff) Mr R Arthur (Defendants) |
| Solicitors Self-represented (Plaintiffs) Ken Cush & Associates (Defendants) | |
File Number: | SC 446 of 2012 |
Burns J:
Background
Wreck Bay Village is an indigenous community within the Jervis Bay Territory, as established by the Jervis Bay Territory Acceptance Act1915 (Cth) (the Acceptance Act). By virtue of s 4D of that Act, the Supreme Court of the Australian Capital Territory has jurisdiction in, and the practices and procedures of this Court apply in, the Jervis Bay Territory. The laws of the ACT, as in force from time to time, also apply in the Jervis Bay Territory: s 4 of the Acceptance Act.
From time immemorial there has been an indigenous community presence in the Wreck Bay area. There is evidence of indigenous occupation of the area going back at least 6000 years. In “Looking after people, looking after country – A cultural heritage management strategy for the Wreck Bay Aboriginal Community 2009 – 2014” it is stated:
The cultural heritage of the Wreck Bay Community is deeply embedded in the surrounding land and waters of Jervis Bay. The natural and social histories are intertwined...
The land belonging to the Wreck Bay Community forms part of the broader Jervis Bay landscape. The culture, history and heritage of Wreck Bay and its people is closely associated with the culture, history and heritage of the whole Jervis Bay region. Wreck Bay culture and history did not develop in isolation from the rest of Australia and it has many features in common with other Aboriginal cultures, such as a shared belief system that emphasises family relationships and connections with the land. Anthropologist Debbie Bird Rose describes the relationship between Aboriginal people and their country as being:
“Intense, intimate, full of responsibilities and, when all is well, friendly. It is a kinship relationship, and like relations among kin, there are obligations of nurturance. People and country take care of each other.”
The present Wreck Bay community dates back to the early 20th century, when the area was part of New South Wales. After the commencement of the Acceptance Act, the precinct of Wreck Bay, which is located in the area subject to the Acceptance Act, became Commonwealth land. On 15 January 1987 the Aboriginal Land Grant (Jervis Bay Territory) Act1986 (Cth) (the ALGA) commenced, the long title of which is “An Act to grant land in the Jervis Bay Territory to the Wreck Bay Aboriginal Community, and for other purposes”. The ALGA provided for the establishment of a council by the name of the Wreck Bay Aboriginal Community Council (the WBACC), which is a body corporate with perpetual succession and which may sue and be sued in its corporate name: s 4. It further provided that the WBACC is to consist of the persons who are registered members. In that regard, s 17 of the ALGA provided for the preparation and maintenance of a register to be known as the Register of Members of the Wreck Bay Aboriginal Community Council (the Register). The initial Register consisted of those persons who the relevant Commonwealth Department was satisfied were Aboriginal and who resided in the Jervis Bay Territory on 24 May 1986 and who had attained the age of 18 years: s 17. Thereafter, the Register could be amended to add the name of a new member where, at a general meeting of the WBACC, a motion that a specified person is an Aboriginal member of the Community is passed, and the secretary of the WBACC is satisfied that he or she has attained the age of 18 years.
The ALGA provided for an initial grant of 403 hectares of land, as described in the Schedule to the ALGA, to become Aboriginal Land. As I understand it, it is accepted that the land on which the Wreck Bay Village and the Mary Bay Ridge are situated are Aboriginal Land for the purposes of the ALGA. The functions of the WBACC, which have been augmented by amendment since 1986, are set out in s 6 of the Act, which presently provides:
The functions of the Council are, subject to and in accordance with this Act:
(a)to hold title to Aboriginal Land;
(b)to exercise, for the benefit of the members of the Community, the Council’s powers as owner of Aboriginal Land and of any other land owned by the Council;
(c)to make representations to the Minister in relation to land that the Council considers should become Aboriginal Land and in relation to other matters relevant to this Act;
(ca)in consultation with the Minister, to consider and, where practicable, take action to the benefit of the Community in relation to the housing, social welfare, education, training or health needs of the members of the Community;
(cb)to provide community services to members of the Community;
(cc)to protect and conserve natural and cultural sites on Aboriginal Land;
(cd)to engage in land use planning in relation to Aboriginal Land;
(ce)to manage and maintain Aboriginal Land; and
(cf)to conduct business enterprises for the economic or social benefit of the Community;
(d)such functions as are conferred on it by a provision of this Act (other than this section); and
(e)any functions relating to the Community conferred on the Council by the regulations.
The powers of the WBACC are set out in s 7 of the ALGA:
(1)In addition to any other powers conferred on it by this Act, the Council has, subject to this Act, power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2)Without limiting the generality of subsection (1), the powers of the Council referred to in subsection (1) include, subject to this Act, power:
(a) to acquire, hold or dispose of real and personal property;
(b) to enter into contracts for the purposes of this Act; and
(c) to employ staff.
In s 27 of the ALGA it is provided that there will be a Chairperson, a Deputy Chairperson and a Secretary of the WBACC. An executive committee of the WBACC is created by s 28 consisting of the Chairperson, the Deputy Chairperson, the Secretary and six other elected members of the WBACC. The functions of the executive committee include the exercise of any powers of the WBACC delegated under s 36 of the ALGA. Only a person whose name is on the Register may be elected as a member of the executive committee. The delegation of powers by the WBACC to the executive committee is permitted by s 36 of the ALGA:
(1)The Council may, by resolution, either generally or as otherwise provided by the resolution, delegate to the executive committee or a committee established under section 35 all or any of its powers under this Act, other than this power of delegation.
(2)A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Council.
(3)A delegation under this section does not prevent the exercise of power by the Council.
In 1995 the ALGA was amended and s 52A was inserted granting the WBACC the right to make by-laws:
52ABy‑laws
(1)In this section Aboriginal Land does not include land declared under section 9A.
(2)The Council may make by‑laws for or with respect to:
(a)economic enterprise on Aboriginal Land;
(b)cultural activities on Aboriginal Land;
(c) the management, access, conservation, fire protection, development and use of Aboriginal Land;
(d) the declaration of sacred or significant sites or other areas of significance to Aboriginal people on Aboriginal Land;
(e)the activities to be permitted on Aboriginal Land or any part of it;
(f) protection and conservation of flora or fauna found on Aboriginal Land;
(g) in relation to Aboriginal Land, the cutting, removal and sale of timber, the granting of revocable licences and the payment of royalties for timber to the Council;
(h)hunting, shooting and fishing on Aboriginal Land;
(i)control of visitors in, and charging fees (to be paid to the Council) for entrance to, Aboriginal Land;
(j) the regulation and control of motor traffic and parking on Aboriginal Land;
(k) the appointment of persons to enforce the by‑laws, and the powers and duties of those persons.
(3)The by‑laws may apply any regulation made under the Environment Protection and Biodiversity Conservation Act 1999 to Aboriginal Land, with whatever changes are needed for that purpose.
(4)A by‑law, in applying a regulation referred to in subsection (3) relating to an offence, must not change the penalty for that offence.
(5)A by‑law must not be inconsistent with a law of the Commonwealth or a law in force in the Territory, but a regulation referred to in subsection (3) may, in its application to Aboriginal Land, be inconsistent with a law in force in the Territory.
(6)The by‑laws may provide that a contravention of a by‑law is an offence.
(7)The regulations may provide, in respect of an offence against the by‑laws, for the imposition of:
(a) if the offender is a natural person—a fine not exceeding 5 penalty units; or
(b)if the offender is a corporation—a fine not exceeding 25 penalty units.
(8)The regulations may make provision for and in relation to enabling a person who is alleged to have committed an offence against the by‑laws to pay to the Commonwealth, as an alternative to prosecution, a penalty not exceeding:
(a)in the case of a natural person—1 penalty unit; or
(b)in the case of a corporation—5 penalty units.
(9)Subsections (7) and (8) do not apply in relation to an offence against a regulation referred to in subsection (3) in its application to Aboriginal Land.
(10)If the Council makes a by‑law, it shall, within 21 days after making it, give a copy of the by‑law to the Minister.
(11)Where the Minister receives a copy of any by‑laws, the Minister shall:
(a)cause the by‑laws to be notified in the Gazette; and
(b) cause a copy of the by‑laws to be laid before each House of the Parliament within 15 sitting days of that House after receipt by the Minister.
(12)By‑laws take effect from the day on which they are notified in the Gazette, or, where a later date is specified in the by‑laws, from that later date.
(13)If a copy of any by‑laws is not laid before a House of the Parliament within 15 sitting days of that House after receipt by the Minister, the by‑laws cease to have effect at the end of that period.
(14)Where a copy of a by‑law has been laid before a House of the Parliament under this section, the provisions of section 48 (other than subsections (1), (2) and (3)) and sections 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the by‑laws as if, in those provisions, references to regulations were references to by‑laws and references to repeal were references to revocation.
On 28 November 2005 the executive committee made the Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2005 (the by-laws), which took effect on 1 July 2006, Part 5 of which concerns controlling activities relating to Aboriginal Land. Relevantly for present purposes, by-law 5.25 provides, regarding camping on Aboriginal Land:
(1)A person must not camp on Aboriginal Land unless the person has the written permission of the Council to do so.
…..
(5)A person must not camp on Aboriginal Land using:
(a)a tent; or
(b)a mobile home; or
(c)a campervan; or
(d)a caravan; or
(e)another mobile or temporary structure;
that does not comply with any by-laws of the Council relating to the standard of construction and safety of the object.
(6)If a person contravenes sub-by-law (1), (3) or (5), a warden may give the person a notice:
(a)identifying the alleged contravention; and
(b)requiring the person:
(i)to vacate the place at which he or she is camping within a specified time; and
(ii)to remove from the place all material the person has brought onto the site, or that is under the person’s care or control; and
(c)explaining the effect of sub-by-laws (7), (8) and (9).
The by-laws also provide for the appointment of wardens to carry out functions, or exercise powers, under the by-laws. By-law 6.01 provides that the WBACC may, in writing, appoint an officer or employee of the WBACC, or a person covered by an arrangement made under by-law 6.02, as a warden. On 10 December 2012 the executive committee passed a motion in the following terms:
1. That Reuben Ardler, Neville Hampton and Mal Hansen, all employees of the Wreck Bay Aboriginal Community Council be appointed Wardens in accordance with by-law 6.01 (a) of the Aboriginal Land Grant (Jervis Bay Territory) By-laws 2005.
2. That, in accordance with by-law 6.03 (1) of the said by-laws, arrangements are to be made to issue the Wardens referred to in 1 with identity cards in a form approved by Council.
3. The appointment of the Wardens is to take effect as of and from 10 December 2012 and remain in force until further notice.
Wreck Bay Village consists of a number of residential dwellings together with administration buildings and community amenities. The number of residential dwellings in the Village is insufficient to house all of the members of the WBACC, and the WBACC does not have the funds to construct housing for all those of its members who would wish to live in Wreck Bay. There is, I understand, a waiting list of members for housing in Wreck Bay. To the west of the Village itself, but separate from it, is an area which, in these proceedings, has been variously referred to as the Mary Bay Ridge or the Back Ridge, or simply the Ridge. For convenience, I will refer to it as the Mary Bay Ridge. As a consequence of the unavailability of housing within the Village, a number of members of the WBACC have placed temporary structures on the Mary Bay Ridge, and have from time to time lived in those structures. Unfortunately, those structures have no amenities such as electricity, running water or sewage. The presence of these structures has long been an issue of contention within the Wreck Bay community. Following a report prepared by Russ Evans in August 1996 which provided an “Outline Plan” of land use in Wreck Bay, the question of what should be done with respect to the structures on the Mary Bay Ridge was raised in meetings of the WBACC, or in meetings of the executive committee, on numerous occasions. It was not until 6 September 2011, however, that steps were taken to address these structures and those who from time to time resided in them. Before considering what occurred on 6 September 2011, it is necessary to refer to an earlier motion passed by the WBACC on 28 January 2007.
At a Special General Meeting of the WBACC held on 28 January 2007 the following motion was passed:
Motion 4:- “That pursuant to s 36 of the Act, Council delegate to the Executive Committee power to do all things necessary or convenient to be done for or in connection with the performance of the following functions:
i.Provide community services to members of the community, and for this purpose “community service” will include, but not be limited to: housing, social welfare, education, training and health needs of the members of the community...
ii.Conduct of business enterprises for economic or social benefit of the community...
iii. Land management of the 403 hectare land granted area including Wreck Bay Village...
Including but not limited to the power to:
a)Apply for and acquitted government funds (sic) b) Manage the application of income and funds received from government, c) Acquire or dispose of Council assets other than land, d) Enter into contracts, e) Employs staff (sic) f) Maintenance of roads and fire trails in 403 hectare area, g) Eradication of bitou bush in the 403 hectare area, and h) Protect and conserve natural and cultural sites on the 403 hectare are” (sic)
Based on the powers said to have been delegated to it by the WBACC on 28 January 2007, on 6 September 2011 the executive committee passed the following motion:
Motion No. 2: – Moved by Annette Brown
“1. All persons and/or residents currently residing in the “Ridge” area, situate (sic) within the Wreck Bay Community, are to relocate from the “Ridge” within a period of six weeks from the date of this motion. All such persons are to remove any structures currently on the “Ridge” wherein they are residing; together with all personal chattels and effects.
2. All persons not currently residing on the “Ridge” that have structures located on the “Ridge” for residential or other purposes, are to remove such structures and associated personal chattels and effects, again, within a period of six weeks from the date of this motion.
3. Council is to provide portaloos, at Council’s expense, for a period of no more than six (6) weeks to residents currently residing on the “Ridge”, with all Pit Toilets currently in use being filled in by the said residents within that timeframe of six weeks.
4. No trees or other vegetation is to be removed from the “Ridge” or any other areas located within the “403” land grant; with such direction to take place immediately.
5. As a Council priority, to a maximum of Three Hundred Thousand Dollars ($300,000.00) in total funding, Council will arrange to construct and provide one residence for Harold and May Stewart and also one residence for Phyllis Forster; with such housing to be located on the “new” subdivision within the Wreck Bay Community on the condition that the structures currently upon the “Ridge” and occupied by Harold and May Stewart and also by Phyllis Forster are removed; pursuant to No.1 above referred to.
6. Council shall provide special measure financial assistance for persons vacating the “Ridge” area in order, if necessary, to assist with such persons securing alternative rental premises outside of the Wreck Bay Community.
7. No building work is permitted outside of the surveyed blocks within the Wreck Bay Community; without permission from Council.
8. Council will assist, within the means available to Council, to reduce damage to the whole area at the “Ridge”; as a consequence of actions flowing further to the contents of this Motion.”
The present proceedings arise out of this motion, and attempts by the executive committee to enforce it. In or around November 2011the WBACC commenced evicting residents of the structures on the Mary Bay Ridge, and the demolition and removal of the structures. That activity gave rise to the commencement of a number of proceedings in this Court. Before outlining the nature of the present proceedings, I will, by way of background, briefly refer to earlier related proceedings in this Court.
Proceedings SC 759 of 2011
On 7 November 2011 Harold John Stewart (frequently referred to as John Stewart) and May Stewart, who had occupied a caravan with associated sheds and other structures on the Mary Bay Ridge, commenced proceedings seeking the following orders against the WBACC:
1.An injunction to restrain the WBACC from proceeding with planned bulldozing of the land currently occupied by John and May Stewart.
2.An injunction restraining the WBACC from proceeding with bulldozing the land also occupied by other nominated family members of John and May Stewart.
On 7 November 2011 I granted an interim injunction prohibiting the WBACC from bulldozing the land occupied by Harold John and May Stewart and the land occupied by their nominated family members. On 9 December 2011 the Master made orders, by consent, requiring the defendant to file and serve a defence by 13 January 2012, and the plaintiffs to file and serve any affidavit material in reply by 10 February 2012. As part of giving effect to the motion of 6 September 2011, a block of land was identified in the Wreck Bay Village for the construction of a residence for Harold John and May Stewart. On 15 December 2011 the Master made further orders requiring the WBACC to “hold and reserve” that block of land so as to be able to meet any judgment in favour of the plaintiffs. The Master also amended the interim injunction to prohibit the WBACC seeking to eject Harold John Stewart or May Stewart, or their nominated family members, from the land they currently occupied on the Mary Bay Ridge. On 3 February 2012 the Master referred the dispute to mediation, and vacated the order of 9 December 2011 requiring the plaintiffs to file and serve affidavits. Unfortunately, the matter did not resolve at mediation and on 16 March 2012 the Master made orders, by consent, requiring the parties to file and serve affidavits. In particular, the plaintiffs were required to file and serve all affidavits and evidence on which they intended to rely by 4 May 2012. On 4 May 2012, the Master granted the solicitors on the record for the plaintiffs leave to withdraw from the proceedings.
On 1 June 2012 the matter came before me. The plaintiffs had not complied with the orders made by the Master on 16 March 2012, and I adjourned the proceedings to 15 June 2012 and advised the plaintiffs that the matter must be progressed on the next occasion. On 15 June 2012 the matter was adjourned to 27 July 2012 for further directions. I made a further order that the plaintiffs were to file and serve all affidavits, documents and evidence upon which they intended to rely on or before 6 July 2012. On 27 July 2012 the proceedings were further adjourned to 3 August 2012, and I again directed that the documents ordered to be filed and served by the plaintiffs on 15 June 2012 which had not yet been filed and served must be filed and served by 5 pm on 8 August 2012. The plaintiffs again did not comply with that order, and pursuant to r 1404 of the Court Procedures Rules 2006 (ACT) I dismissed the plaintiffs’ claim because of their failure to comply with court orders.
Proceedings SC 438 of 2012
On 13 December 2012 Walter Sean Stewart commenced proceedings against the WBACC seeking an interim injunction to restrain it from bulldozing the remainder of his property on the Mary Bay Ridge, and restraining the WBACC from bulldozing the land occupied by other family members, including Harold John Stewart, May Stewart and other nominated members of their extended family. The application came before me on 17 December 2012, at which time it was adjourned to the following day as the application had not been served on the WBACC. The application still had not been served by 18 December 2012, and the matter was further adjourned to 21 December 2012. On that date Mr Walter Stewart appeared self-represented, and the WBACC was legally represented. After hearing the parties I refused the application for injunctive relief. I also observed that the plaintiff’s complaint seemed to be not that the WBACC was acting unlawfully, but that the executive committee members were.
The present proceedings: SC 446 of 2012
On 21 December 2012 Mr Walter Stewart commenced the current proceedings against named members of the executive committee seeking the same orders that he sought in proceedings SC 438 of 2012. Subsequently, Mrs May Stewart, Mr Harold John Stewart, Steven Stewart, Douglas Green and Corey Green were added as co-plaintiffs, and the WBACC and the executive committee as an entity were added as defendants. The plaintiffs were, at various times, legally represented by successive lawyers, but much of the time were self-represented. As such, some confusion has arisen concerning the proper designation of the defendants. It is desirable that this be clarified. The executive committee as an entity is designated the first defendant. The WBACC is designated the second defendant. The named members of the executive committee as at the date these proceedings were commenced (Craig Ardler, Annette Brown, Joseph McLeod Brown, Clive Freeman, Julie Freeman, Todd Roberts, Darren Sturgeon and James McKenzie) are designated the third defendants.
A Statement of Claim dated 6 March 2013 was filed in which the plaintiffs seek very broadly expressed declaratory relief, some of which is clearly inappropriate and unconnected with any rights the defendants assert in the proceedings. They do, relevantly, seek:
(a)a permanent injunction restraining the defendants from unlawfully interfering with the plaintiffs’ rights to occupy the Mary Bay Ridge;
(b)a declaration that the plaintiffs lawfully occupy the Mary Bay Ridge under lease or licence;
(c)a declaration that the defendants do not have the lawful authority to forcibly remove the plaintiffs and other registered members from the Mary Bay Ridge;
(d)a declaration that the defendants have taken unlawful steps to eject the plaintiffs and other registered members from the Mary Bay Ridge;
(e)a declaration that the defendants are bound by and subject to the Human Rights Act 2004 (ACT) (the HRA);
(f)a declaration that the defendants denied the plaintiffs and other registered members natural justice; and
(g)a declaration that they are entitled to a grant of a lease or leases in accordance with the provisions of the ALGA.
The plaintiffs also complained that the actions of the defendants in attempting to evict them, and remove the structures, from the Mary Bay Ridge were “culturally inappropriate”, and involved breaches of a number of enactments, including the ALGA, the Commonwealth Authorities and Companies Act1997 (Cth) and the Administrative Decisions (Judicial Review) Act 1997 (Cth).
In March 2013 the defendants filed a Defence and Counterclaim, but this was superseded by an Amended Defence and Counterclaim filed at the commencement of the hearing on 16 June 2014. The defendants admitted that the plaintiffs were registered members of the Council, that Walter Stewart had lived on the Mary Bay Ridge on numerous occasions prior to settling there permanently in 2000, that Harold John and May Stewart had lived upon the Mary Bay Ridge since the early 1990s, that May Stewart had lived and continued to live at Wreck Bay and that Harold John Stewart also lived at Wreck Bay at various times throughout his childhood before permanently residing there with his wife May Stewart. The defendants also admitted that Steven Stewart had lived on the Mary Bay Ridge at various times before settling there with his partner Marica Palibino and their children. They further admitted that Douglas Green, who was adopted by his grandparents Harold John Stewart and May Stewart, also resided on the Mary Bay Ridge as a child and attended local schools. The defendants denied that the plaintiffs had at all times remained on the Mary Bay Ridge with the acquiescence and consent of the defendants, but admitted that Harold John Stewart and May Stewart had occupied land on the Mary Bay Ridge at certain times with the acquiescence of the defendants, but not since September 2011.
The defendants did not plead specifically to each of the paragraphs of the Statement of Claim on the basis that they were repetitive, embarrassing and incapable of amounting to a cause of action. In answer to the whole of the Statement of Claim the defendants said:
(a)None of the plaintiffs were in occupation of the land which was granted to the WBACC under the ALGA immediately before the grant in 1986, and as such none of the plaintiffs were entitled to the grant of a lease pursuant to s 40 of that Act;
(b)The WBACC, or the executive committee as its delegate, has a discretion to grant a lease pursuant to s 38 of the ALGA, but has not exercised its discretion in favour of the plaintiffs other than Harold John Stewart and May Stewart. As such, none of the plaintiffs other than Harold John Stewart and May Stewart have been entitled to the grant of a lease under s 38 of that Act; and
(c)The executive committee resolved to exercise its discretion to grant a lease to Harold John Stewart and May Stewart, and offered them a lease on terms which they did not accept. The offer of the lease was subsequently withdrawn and as such the defendants say that Harold John Stewart and May Stewart are not presently entitled to the grant of a lease under s 38 of the ALGA.
The counterclaim pleads that the WBACC is the owner of the Aboriginal Land vested in it by virtue of the ALGA and has the power to do all things necessary or convenient to be done for or in connection with its function of land management over the Aboriginal Land. It pleads that the executive committee is a body established under the ALGA and one of its functions is to exercise the delegated powers of the WBACC. It further pleads that the WBACC has delegated its powers with respect to land management to the executive committee. It pleads that the plaintiffs/counter defendants are occupying the Mary Bay Ridge, and that the executive committee has resolved to require the counter defendants to leave the Mary Bay Ridge and to remove their structures from that place, and has notified the counter defendants to that effect. The counter claimants say that the counter defendants do not have permission of the WBACC to occupy the Mary Bay Ridge, and that they are effectively camping on Aboriginal Land without the written permission of the WBACC. The counter claimants seek declarations:
(a)That the executive committee has power to grant or withhold permission to any person to occupy Aboriginal Land pursuant to the delegation of powers by the WBACC to the executive committee on 28 January 2007;
(b)That the occupation of the area of Aboriginal Land known as the Mary Bay Ridge by Walter Sean Stewart, Harold John Stewart, may Stewart, Stephen Stewart and Marica Palibino (and their children Jessica, Aiden, Coen, Zahara and Layla), Douglas Green and Corey Green is:
(i)camping for the purposes of by-law 5.25 (1) of the by-laws;
(ii)being carried out without the permission of the WBACC; and
(iii)in contravention of by-law 5.25 (1) of the by-laws.
(c)That a notice in the form of Annexure A to the Amended Defence and Counterclaim given to those persons named above shall be effective for the purposes of by-law 5.25 (6) to give notice to those persons; and
(d)That the resolution of the executive committee of 10 December 2012 is effective to appoint the persons named therein as wardens pursuant to by-law 6.01.
Harold John Stewart and May Stewart filed a Reply and Answer to the Counterclaim in which they asserted that they had at all times resided in a shack at the Mary Bay Ridge under an implied licence from the WBACC which had never been revoked. To the extent that it was alleged that the executive committee had revoked the licence, the purported revocation was ineffective to terminate the implied licence as there had never been a delegation from the WBACC to the executive committee of the powers vested in the WBACC to manage Aboriginal Land granted under the ALGA. Further, they claimed that the WBACC and the executive committee were estopped from seeking to eject them from the Mary Bay Ridge.
Mediation
On 7 June 2013 I directed that these proceedings be referred for mediation. At that time the plaintiffs were legally represented. In November that year, after the matter had returned to Court on a number of occasions for further directions. On one of those occassions the legal representatives of the plaintiffs withdrew, and thereafter the plaintiffs were self-represented. By that time it had become clear that the matter would not resolve by way of mediation, and on 6 December 2013 I vacated the order referring the matter to mediation and gave further directions about the preparation of the proceedings for trial. Among the directions given on that day was a direction that the plaintiffs were to file and serve any further material that they intended to rely upon at the hearing by 10 January 2014. At that time it was anticipated that the matter would proceed to trial on 17 and 18 March 2014 at Jervis Bay. Unfortunately, that date had to be vacated and new trial dates of 16 and 17 June 2014 were allocated. On 7 May 2014 the plaintiffs were granted a further seven days to file any new material that they intended to rely upon at the trial. On 27 May 2014 the plaintiffs were given a further extension of time to 6 June 2014 to file any further material. On 11 June 2014 at a further directions hearing I ordered that no further material was to be filed by any party without the leave of the Court. The defendants had, on 6 December 2013, indicated that they did not object to the plaintiffs using the material filed in SC 438 of 2012 in the current proceedings. On 11 June 2014 I also indicated that the plaintiffs would be allowed in the current proceedings to rely upon material filed in the earlier proceedings.
The hearing
The hearing took place on 16 June 2014 at Jervis Bay. The only plaintiff who attended was Harold John Stewart. His daughter, Ms Jennifer Stewart, was given leave to assist him. I am grateful to Ms Stewart for the assistance she provided to her father and the Court. The following affidavits were relied upon by Mr Harold Stewart:
(a)an affidavit of Harold John Stewart in proceedings SC 759 of 2011 sworn 4 November 2011;
(b)an affidavit of Jennifer Ann Stewart in proceedings SC 759 of 2011 sworn 4 November 2011;
(c)an affidavit of Parastou Hatami affirmed 14 December 2011;
(d)an affidavit of May Grace Stewart in proceedings SC 759 of 2011 sworn 12 April 2012;
(e)an affidavit of Jennifer Ann Stewart in proceedings SC 759 of 2011 sworn 1 June 2012;
(f)an affidavit of Kieran Bruce Assheton-Stewart in proceedings SC 759 of 2011 sworn 2 August 2012;
(g)an affidavit of Walter Sean Stewart in proceedings SC 446 of 2012 sworn 21 December 2012;
(h)an affidavit of Harold John Stewart in proceedings SC 446 of 2012 sworn 21 December 2012;
(i)an affidavit of Jennifer Ann Stewart in proceedings SC 446 of 2012 sworn 21 December 2012;
(j)an affidavit of Walter Sean Stewart in proceedings SC 446 of 2012 sworn 6 March 2013;
(k)an affidavit of Steven John Stewart in proceedings SC 446 of 2012 sworn 6 March 2013;
(l)an affidavit of May Grace Stewart in proceedings SC 446 of 2012 sworn 6 March 2013;
(m)an affidavit of Harold John Stewart in proceedings SC 446 of 2012 sworn 6 March 2013;
(n)an affidavit of Kieran Assheton in proceedings SC 446 of 2012 sworn 7 March 2013;
(o)an affidavit of Walter Sean Stewart in proceedings SC 446 of 2012 sworn 17 May 2013;
(p)an affidavit of Steven John Stewart in proceedings SC 446 of 2012 sworn 17 May 2013;
(q)an affidavit of May Grace Stewart in proceedings SC 446 of 2012 sworn 3 June 2013;
(r)an affidavit of Steven John Stewart in proceedings SC 446 of 2012 sworn 3 June 2013;
(s)an affidavit of Walter Sean Stewart in proceedings SC 438 of 2012 sworn December 2012;
(t)an affidavit of Kieran Assheton in proceedings SC 438 of 2012 sworn 11 December 2012;
(u)an affidavit of Steven John Stewart in proceedings SC 438 of 2012 sworn 12 December 2012;
(v)an affidavit of May Grace Stewart in proceedings SC 438 2012 sworn 12 December 2012;
(w)an affidavit of Jennifer Ann Stewart in proceedings SC 438 of 2012 sworn 12 December 2012; and
(x)an affidavit of Harold John Stewart in proceedings SC 438 2012 sworn 12 December 2012.
Mr Harold John Stewart
In his first affidavit sworn 4 November 2011 Mr Harold Stewart deposed to being a resident of Wreck Bay and having lived there with his wife May Stewart since 1985. His wife was born at Wreck Bay and the two of them moved there, he said, in 1985 and prior to the 1986 land grant. He stated that they had lived on the Mary Bay Ridge since 1986. A number of his children and grandchildren had moved to Wreck Bay over the years to live near him and his wife on the Mary Bay Ridge. Their son, Stephen Stewart (born 1940) and his wife Marica Stewart and their four children Coen (2008), Steven (2009), Adan (2005) and Jessica (2000) had been living on the Mary Bay Ridge with himself and his wife for 12 months prior to November 2011. Prior to that, Stephen Stewart came to the Mary Bay Ridge and stayed in a caravan on and off for approximately 15 years. Mr Harold Stewart said that his son Stephen attended the Mary Bay Ridge to care for him almost every day for the previous five years, until he eventually decided to stay there to avoid the ongoing travel.
Mr Harold Stewart also said that his other son Sean Stewart (1969), and his three sons Douglas Stewart (1988), Dennis Stewart (1989) and Corey Stewart (1990), also lived on the Mary Bay Ridge. Mr Harold Stewart and his wife May Stewart adopted their grandsons Douglas, Dennis and Corey in about 1990 and they had lived with Mr and Mrs Stewart since that time.
Harold John Stewart stated that all of his family members referred to above, except Marica Stewart, were registered members of the Wreck Bay Aboriginal Community with voting rights.
On 8 September 2011 Mr Harold Stewart received a letter from the WBACC requiring him and his wife to vacate their dwelling and remove any structures or dwellings on the Mary Bay Ridge by 18 October 2011. On 24 October 2011 they received another letter requiring them to move from the Mary Bay Ridge by 7 November 2011. A further letter dated 24 October 2011 offered them a house in Wreck Bay, together with other assistance from the WBACC if required. They were requested to attend the WBACC offices on or before 27 October 2011 to provide written acceptance of the offer, in default of which it would lapse. In his affidavit Mr Harold Stewart stated that he believed that as occupiers of the land immediately prior to the land grant in 1986 he and his wife were entitled to a 99 year lease in Wreck Bay. He further stated that he understood that the decision made by the executive on 6 September 2011 was made by “four board members and the other members present at the meeting were strongly opposed to the decision”. He said that prior to this decision being made, the WBACC supported their presence on the Mary Bay Ridge, as demonstrated by its purchase of equipment such as caravans and generators to assist them in living more comfortably at the Mary Ridge.
In his second affidavit sworn on 21 December 2012, Mr Harold Stewart stated that on 26 November 2012 he was in Queensland when he received a phone call from his wife, May Stewart, saying that she had received a letter from the WBACC saying they had to leave. Mr Stewart was unable to return to Wreck Bay until 2 December 2012. He stated that police attended on 3 December 2012 and he was told that they were to be removed from the Mary Bay Ridge. They packed up most of their belongings and sent them to Mrs Stewart’s cousin because they thought their shelter was going to be bulldozed.
Mr Harold Stewart’s third and fourth affidavits sworn 12 December 2012 and 6 March 2013 respectively are in exactly the same form as that sworn on 21 December 2012.
In cross-examination Mr Harold Stewart agreed that the contents of his first affidavit were incorrect in so far as it was suggested that he had lived in Wreck Bay since 1986. He agreed that the correct date was 1996. He agreed that, as at the date of the hearing, he was no longer living on the Mary Bay Ridge, but was living in Sanctuary Point. He said, however, that he returned to the Mary Bay Ridge on occasions, and that his belongings were still there. He had not been living at the Mary Bay Ridge for some time, as he had been in and out of hospital over the previous 12 months. The same was true with respect to his wife. His son, Steven Stewart, was also not living at the Mary Bay Ridge, but was also living at Sanctuary Point. Mr Harold Stewart agreed that he had been a member of the executive committee in 2006 and 2007, and that it was the view of the committee at that time that no new shacks were to be built and that those who were in shacks at that time should move away as quickly as possible. He said that the WBACC had proposed building him a house, and that if they had done so he would have pulled down his shack.
Mrs May Grace Stewart
In her first affidavit sworn 12 April 2012 Mrs Stewart stated that she is an Aboriginal Elder of the Wreck Bay Aboriginal Community, and as at the date of swearing her affidavit she was the oldest living Aboriginal person still living at Wreck Bay from the original community. She first came to live at Wreck Bay when she was three weeks old in 1940, and she was raised by her grandparents at Wreck Bay. She grew up living in a shack on the Mary Bay Ridge, and her grandfather built several shacks along that Ridge and in the hollow nearby. Her eldest child was born at Wreck Bay, but she and her husband Harold Stewart moved from Wreck Bay in 1961/62 and thereafter lived in a lot of places. She always thought of Wreck Bay as her home because of the spiritual ties she had with the land. She returned to Wreck Bay several times over the years, before finally settling there with her husband in a shack beside Mary’s Creek. They subsequently moved to the Mary Bay Ridge where they lived for a number of years before they adopted their grandchildren, Douglas, Dennis and Corey in the early 1990s. They then raised their adopted children in the shack on Mary Bay Ridge.
Mrs Stewart stated that she had not initially applied to be on the Register because she always thought that she would have automatically been included. She applied to become a registered member twice, and was accepted and put on the Register in 1996. She believed that by virtue of the provisions of the ALGA, she was entitled to a lease of land in Wreck Bay.
In her second affidavit sworn on 12 December 2012, Mrs Stewart expressed her belief that it was “culturally wrong” for the WBACC to have insisted that she move from her traditional homelands. She stated that many families including her own have lived on or near the Mary Bay Ridge long before and after she was born. She expressed the view that the WBACC does not have the legal authority to demolish her home or the homes of her family.
Mrs Stewart’s third affidavit sworn 6 March 2013 was identical to the affidavit she swore on 12 December 2012. In her fourth affidavit sworn on 3 June 2013, Mrs Stewart said that in or around 2004 she and her husband were offered a house in Wreck Bay Village by the executive committee. She said that the house was constructed in 2005, at which point she was advised by the executive committee that the house had been allocated to a family. She was aware that the executive committee made a further offer of a house in a letter of 24 October 2011, but stated the executive committee “refused to go into any further discussion”.
Mrs Stewart was cross-examined over the telephone, as her health did not permit her to attend the hearing. She agreed that she became a registered member of the WBACC in 1996 when she returned to Wreck Bay. Prior to that she had not lived in Wreck Bay for some years.
Mr Walter Sean Stewart
In his first affidavit sworn 21 December 2012, Mr Walter Stewart stated that he did not receive any prior notification addressed to himself from the WBACC that he was to be evicted from his residence on the Mary Bay Ridge, or that his residence was to be destroyed. He stated that on 3 December 2012 police officers attended the Mary Bay Ridge and told him that he had until 10:00 am on Wednesday 5 December 2012 to leave. Mr Walter Stewart commenced packing his belongings, at which time workers began demolishing his son Corey Green’s house. Once they had finished demolishing that house, they demolished Walter Stewart’s fence. On 4 December 2012 workers returned to the Mary Bay Ridge site and commenced demolishing hisresidence.
Mr Walter Stewart’s second affidavit is also sworn in December 2012, but on an unspecified date. It has the same content as his affidavit sworn 21 December 2012. Mr Walter Stewart’s third affidavit was sworn on 6 March 2013 and has the same content as his first two affidavits.
In his fourth affidavit sworn 17 May 2013, Mr Walter Stewart reiterated that he had never received any notice advising him that he was required to vacate his home and remove himself and his personal property from the Mary Bay Ridge. He initially believed that “the matter only involved my parents Harold and May Stewart and my sibling Steven Stewart and his family” until work crews attended to bulldoze his home. He stated that he does not believe that the premises that he and his parents are residing in on the Mary Bay Ridge fall into the category of “un-authorised dwellings” as the structures were in place long before the by-laws came into effect. He expressed the view that the by-laws did not have retrospective effect authorising the removal of existing un-authorised structures. He stated that the executive committee had recently held an executive meeting and passed motions to appoint wardens in accordance with Part 6 of the by-laws, but it was his belief that pursuant to the provisions of by-law 6.01 wardens could only be appointed by the WBACC.
Mr Walter Stewart was also cross-examined over the telephone. He stated that he first moved into the Mary Bay Ridge around 2000, and had been living in a caravan with an annex. This structure had previously belonged to his aunty, Phyllis Foster. Before moving into that structure he had not sought permission from anyone. He was no longer living on the Mary Bay Ridge as this structure had been destroyed, although his brother Steven Stewart had let him stay at his place on the Mary Bay Ridge.
Ms Jennifer Ann Stewart
In her first affidavit sworn 4 November 2011 Ms Jennifer Stewart stated that she was a member of the executive committee until she resigned on 9 September 2011 in protest because of the conduct “of the council” regarding the removal of the residents from the Mary Bay Ridge. She complained of unspecified “slanderous” statements being made by one unnamed member of the executive committee about the residents of the Mary Bay Ridge. She stated that there were six members of the executive committee present at the meeting on 6 September 2011. She said that one member left the meeting around the time of discussions about the removal of the Mary Bay Ridge residents, and of the remaining five members, only four voted in favour of the motion. Ms Stewart expressed the belief that due process was not followed in the meeting, and that those likely to be affected by the resolution were not given adequate notice of the proposed resolution and given an opportunity to answer any allegations. She considered the actions of the executive committee to be culturally inappropriate.
In her second affidavit sworn 1 June 2012 Ms Stewart spoke of the attempts that she had made, on behalf of Mr John Stewart and Mrs May Stewart, to obtain legal representation in these proceedings.
In her third affidavit sworn 12 December 2012 she said that on 4 December 2012 she received a phone call from family members who reside at the Mary Bay Ridge to advise that members of the Australian Federal Police and the WBACC were present on the Mary Bay Ridge and had bulldozed her nephew, Corey Green’s, abode the previous day and were about to bulldoze her brother Sean Stewart’s abode. Ms Stewart expressed the opinion that the WBACC did not have the legal right to forcibly remove the occupants of the Mary Bay Ridge, and that the resolution made by the executive committee of 6 September 2011 was in contravention of the ALGA and other Commonwealth legislation. She also opined that the decision was “a breach of Human Rights and Indigenous Cultural Practices”. Ms Stewart echoed the view expressed by Walter Stewart that the by-laws had no retrospective effect so as to allow the removal of unauthorised structures. She further stated that the executive committee had no power to direct the occupants of the Mary Bay Ridge to leave their residences because the ALGA gave power to the WBACC to make decisions relating to land use.
Ms Stewart’s fourth and final affidavit, which was sworn on 21 December 2012, has the same content as her affidavit sworn 12 December 2012.
In cross-examination Ms Stewart said that she was a member of the executive committee in September 2011 and had been opposed to the motion requiring the residents of the Mary Bay Ridge to relocate within six weeks. She said that she opposed the motion on the grounds that she did not believe that the executive committee had the authority to make the decision, that the Stewart family had been denied natural justice and on cultural grounds. Ms Stewart agreed that she was not living at the Mary Bay Ridge, but she attended there regularly as her father’s carer. She agreed that none of the plaintiffs were currently residing at the Mary Bay Ridge, but some had possessions there.
Mr Steven Stewart
Mr Steven Stewart’s first affidavit, sworn on 12 December 2012, refers to receiving a letter on 19 October 2012, delivered by police, telling him that he had until 27 October to vacate the shacks on the Mary Bay Ridge and that the structures would be bulldozed and any families living in them would be forcibly removed. On 3 December 2012 police attended the Mary Bay Ridge and told him he would have to move or be arrested. He asked to see a court order, but was told that they did not need a court order to remove him as they were enforcing the WBACC by-laws.
Mr Steven Stewart’s second affidavit sworn on 6 March 2013 has the same content as his first affidavit.
In his third affidavit sworn 17 May 2013 Mr Steven Stewart said that he had cleaned the area where he now resides, as it had previously been used by the community as a dumping ground. He said he removed approximately five trailer loads of rubbish at his own expense. After he cleaned and mowed the area, Russell Brown fenced off the area with the purpose of taking up residence there. He said that it was only after this incident that the executive committee decided to try and remove the residents from the Mary Bay Ridge. Mr Steven Stewart complained that the WBACC had not been willing to negotiate a mediated agreement, and that it had withdrawn an offer to Mr Harold Stewart and Mrs May Stewart for a house within the Village after they tried to negotiate the terms of the offer.
In his fourth and final affidavit sworn on 3 June 2013 Mr Steven Stewart said that he is in receipt of a carer’s pension as a carer for his mother, Mrs May Stewart. He said that he and his wife have six children, and he spoke of unsuccessful attempts over a period of six months to find alternative accommodation in the region between St George’s Basin and Nowra. He said that there was no alternative accommodation available to him, and if they were ejected from the Mary Bay Ridge they would be homeless.
In cross-examination Mr Stewart agreed that he had lived for a period of time on the Mary Bay Ridge when he was younger, before moving away. When he returned he set up a place for himself to live, consisting of a caravan with an annex. He said that he notified the WBACC before moving back to the Mary Bay Ridge, but that he had not sought permission before doing so. As at the date of the hearing he had not lived on the Mary Bay Ridge for approximately a year.
Kieran Bruce Stewart
Mr Kieran Stewart (also referred to as Kieran Assheton-Stewart) is the son of Ms Jennifer Stewart, and grandson of Mr Harold Stewart and Mrs May Stewart. In his first affidavit sworn on 2 August 2012, Mr Kieran Stewart speaks of the time that he spent as a child with his grandparents at the Mary Bay Ridge, and of them educating him about various aspects of his culture and its traditions.
In his second affidavit sworn on 11 December 2012, Mr Kieran Stewart provided his observations of demolition work conducted on the Mary Bay Ridge on 4 December 2012. Mr Kieran Stewart spoke of confronting those who were conducting the demolition, and telling them that they were acting unlawfully. In particular, he referred to the contents of an affidavit sworn by Craig Ardler, the chairperson of the executive committee, on 1 December 2011 in which he denied the assertion made by Ms Jennifer Stewart in her affidavit of 4 November 2011 that a decision had been made by the WBACC or the executive committee to remove the residents from the Mary Bay Ridge and demolish their dwellings, and went on to say:
It was a matter entirely for them whether they wished to vacate that area. “Structures” was referred to and is constantly referred to in correspondence since then as well as in minutes of further meetings. The persons were not to be removed by Council or the Board. I do not believe that the Council has the power to do that i.e. forcibly remove persons, in any event. That was and is a matter for them, the Stewarts; subject to legal requirements; in my view.
Mr Kieran Stewart’s third and final affidavit sworn on 7 March 2013 has the same content as his second affidavit.
Mr Kieran Stewart was not cross-examined.
In the defendants’ case the following affidavits were read:
(a)an affidavit of Craig Mitcham Ardler sworn 11 April 2013; and
(b)an affidavit of Reuben Charles Ardler sworn 20 December 2013.
Craig Ardler
In his affidavit Craig Ardler stated that he is the chairperson of the WBACC, having held that position since the end of 2010. Prior to that time he has held the roles of chairperson, deputy chairperson and executive member at various times since 1994. He deposes to the fact that the WBACC was created in 1986 under the ALGA, and is the owner of the land at Wreck Bay. Every person who is a registered member of the community at Wreck Bay is also a member of the WBACC. The first members were those persons who resided on the land when the land grant was made in 1986. Annexed to his affidavit is a list of the persons who were registered as members at the time of the land grant in 1986, which does not include the names of any of the plaintiffs in these proceedings. Mr Craig Ardler stated that he does not reside at Wreck Bay because of the lack of available housing. The majority of the members of the Wreck Bay community also reside elsewhere for the same reason. He stated that the council has very limited funds available for new housing, and receives many requests for housing which it cannot meet. As a consequence, he says, over the years some members have put up shacks on Wreck Bay land.
Mr Craig Ardler stated that the WBACC commissioned a planning study in 1996, which remains the document which guides planning decisions of the WBACC. In that study the Mary Bay Ridge area is shown on the “Principles Plan” as “Transient”. At that time there were a number of shacks in the area, including that of Mr Harold John Stewart and Mrs May Stewart. Over the last 20 years, Mr Craig Ardler said, there have been various shacks and other unauthorised structures on the Mary Bay Ridge, none of which have been connected to power, water or sewage facilities. None of those facilities can be provided to that site. The WBACC has been conscious of the limited housing opportunities available to its members and has, to a degree, tolerated those shacks, on occasions providing portable electricity generation and toilet facilities when particular needs arose. Nonetheless, at various times the WBACC, through the executive committee, has asked some people to remove their shacks and other unauthorised structures.
Mr Craig Ardler further stated that on 28 January 2007 the WBACC resolved to delegate its land management functions to the executive committee. In 2011 the WBACC again became concerned about the number and nature of the shacks on the Mary Bay Ridge, particularly with respect to environmental and cultural heritage damage being caused. Mr Craig Ardler said that apart from the need to protect the environment and cultural heritage of the area, occupation of the shacks on the Wreck Bay land is a contentious issue for the WBACC. Many community members would also like to live there, and the executive committee regularly received complaints from members that some people were receiving preferential treatment by being allowed to live there while others were not. Mr Ardler stated that he was concerned that it will become increasingly difficult to prevent other members from setting up shacks in the future if the present shacks are allowed to remain.
On 6 September 2011, Mr Craig Ardler said, the executive committee resolved to require all of the persons then occupying structures on the Mary Bay Ridge to relocate, and remove any structures together with all personal chattels and effects. Letters were then sent to those persons located on the Mary Bay Ridge enclosing a copy of the executive committee’s resolution requiring them to vacate the Mary Bay Ridge. On 21 October 2011 the executive committee affirmed its earlier resolution by passing the following resolution:
Motion No. 4:- Moved by Annette Brown.
1a. That a second and final notice be sent to all members currently residing on Mary Ridge to reaffirm the Board’s position regarding the removal of dwellings by 18 October 2011; and to convey what action will now take place;
1b. Include mention of the offer of housing to those offered and seek their acceptance of this offer in writing as well as those members showing cause to comply with the directions/requests of the Board by 27 October 2011 (failure to comply will make the offer null and void);
2. Notice to all Registered Members informing them of the Board’s position and decisions regarding removal of dwellings on Mary Ridge and to include the authority of the Board to act as it did on 6/9/2011; regarding the Board’s powers and the reasons for such a decision on that date e.g. health, environmental issues and town planning issues etc;
3. Notify the Australian Federal Police to act in accordance with the direction of the Board and to remove members currently residing on Mary Ridge for the purpose of removing dwellings on 7 November 2011;
4. Wreck Bay Aboriginal Community Council (WBACC) remove unoccupied dwellings on Mary Ridge on 31 October 2011; with the assistance of the Australian Federal Police; if necessary;
5. Total removal of all dwellings by 7/11/2011; and
6. A draft media release to be prepared on or before 7 November 2011 relating to this matter and forwarded to the Chairman for perusal.
Mr Craig Ardler deposed that further letters were then sent to the persons located at the Mary Bay Ridge reaffirming the decision to remove the structures from the Ridge. Offers were made to three elderly persons, Ms Phyllis Foster, Mr Harold John Stewart and Mrs May Stewart, of the grant of a lease of a house in the Wreck Bay Village. Subsequently Ms Phyllis Foster accepted the offer, but Mr Harold John Stewart and Mrs May Stewart did not.
On 15 January 2012 the WBACC held a Special General Meeting at which, after a secret ballot, a motion was passed supporting the executive committee’s efforts to remove the unauthorised dwellings from the area of the Mary Bay Ridge. Of the 71 registered members of the WBACC who attended and voted, 65 voted in favour of the motion.
In his affidavit, Mr Craig Ardler says that on 10 December 2012 the executive committee appointed in writing Malcolm Hansen, Neville Hampton and Reuben Ardler as wardens pursuant to by-law 6.01 of the by-laws, each being employees of the WBACC.
Mr Craig Ardler was cross-examined by Ms Jennifer Stewart on behalf of Mr Harold Stewart. He was taken to his affidavit of 1 December 2011 (referred to at [54] above) and asked about his statement that he did not believe the WBACC had the power to forcibly remove persons. He replied that this portion of his affidavit had been taken out of context, and his intention was to convey his opinion that the WBACC had no power to remove registered members from the 403 hectare land grant, and he had not intended to suggest that the WBACC did not have the power to remove the unauthorised structures.
Mr Reuben Ardler
Mr Reuben Ardler annexed minutes of the executive committee meetings on 8 February 2005, 13 October 2005, 14 November 2005, 28 November 2005, 19 December 2005, 27 March 2006, 11 December 2006, 2 March 2007, 12 March 2007 and 30 April 2007 to his affidavit affirmed 20 December 2013. Most of these minutes simply evidence ongoing concern within the executive committee about the presence of unauthorised structures on the Mary Bay Ridge, and the process of formulating an appropriate response. It is necessary, however, to refer to the first set of minutes in a little detail. The minutes of the meeting of 8 February 2005 record the following motions being passed by the executive committee:
Motion 2:- Moved by Gavin McLeod
“Pursuant to the powers vested in the Aboriginal Land Grant (Jervis Bay Territory) Act1986 (sic) as Amended the Executive Committee of the Wreck Bay Aboriginal Community Council resolved that all prior Resolutions approving By-laws be revoked and that all prior by-made by the Council prior to this resolution be revoked”
...
Motion 3:- Moved by Gavin McLeod
“Pursuant to section 52A (2) of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 as Amended the Council hereby makes By-laws in the form of the By-laws attached to this resolution and marked “A” and initialled by the Chairperson of the Executive Committee”
...
Motion 4:- Moved by Leon Brown
“Pursuant to section 52A(10) of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 as Amended the Council resolve to give a copy of the By-laws referred in the preceding Resolution to the Minister and request that the Minister deal with the By-laws in accordance with section 52A(11) of the Act”
Consideration
None of the plaintiffs resided in the Jervis Bay Territory on 24 May 1986, and accordingly their names were not included on the initial Register of registered members compiled in compliance with s 17 of the ALGA. If any of the plaintiffs had resided in the Jervis Bay Territory as at that date, and had been in occupation of Aboriginal Land with the express or implied consent of the Commonwealth or a Commonwealth authority on that date, they would have been entitled to a lease of that land for a period of 99 years: see s 38 and s 40. None of the plaintiffs were, however, in occupation of such land as at 24 May 1986, with the consequence that they are not entitled to a lease by virtue of the provisions of s 40.
Although not entitled by right to a lease of Aboriginal Land within Wreck Bay, the plaintiffs, as registered members, are eligible to be granted a lease of Aboriginal Land for domestic purposes at the discretion of the WBACC: s 38 (2) ALGA. The WBACC exercised its discretion to offer such a lease to Mr Harold Stewart and Mrs May Stewart, but not to members of their extended family including the other plaintiffs. Mr Harold Stewart and Mrs May Stewart were not willing to accept the offer on those terms, and the offer was withdrawn. The ALGA does not oblige the WBACC to negotiate the terms on which such a granted is offered, and nor does it prescribe that extended family members of those granted a lease over Aboriginal Land are entitled, as a right, to also be granted a lease over Aboriginal Land.
The plaintiffs also claim an entitlement to a licence from the WBACC under s 38 to occupy land on the Mary Bay Ridge. The WBACC clearly has a discretion to grant such a licence, but it is not obliged to do so. The evidence suggests that some of the plaintiffs have, in the past, occupied land and erected unapproved structures on the Mary Bay Ridge pursuant to an implied licence from the WBACC. Such a licence may be implied from the facts that the WBACC was aware that they were occupying the land, and erecting the structures, but it took no steps to remove the structures or prohibit them from dwelling on the land, and also occasionally provided temporary assistance to the plaintiffs in making the structures habitable. There is no evidence that any of the plaintiffs sought the permission of the WBACC before occupying land on the Mary Bay Ridge or erecting any of the unapproved structures. Any implied licence to occupy the land on the Mary Bay Ridge was revocable by the WBACC, or the executive committee pursuant to any delegated powers, at will. The actions of the executive committee in passing motions on 6 September 2011 and 21 October 2011 requiring all persons residing on the Mary Bay Ridge to cease occupying land on the Mary Bay Ridge and to remove unapproved structures were, if the executive committee had the power to take such action, sufficient to terminate the licences. In their Statement of Claim, the plaintiffs claim that the only functions lawfully delegated to the executive committee by the WBACC were those of providing community services to members of the community and conducting business enterprises to the economic or social benefit of the community, which were delegated on 20 October 1991. It follows from this that the plaintiffs’ claim that the purported delegation of powers at the Special General Meeting of the WBACC one 28 January 2007 was invalid. No evidence was advanced by the plaintiffs to establish that the meeting on 28 January 2007 was not conducted in accordance with the requirements of the ALGA, nor was there any evidence of any complaint being made, whether by the plaintiffs or otherwise, that the Special General Meeting of 28 January 2007 had not been properly conducted until such time as the plaintiffs raised their allegations in these proceedings. I will return to the question of the validity of the delegation of 28 January 2007 later.
The plaintiffs, as I understand it, allege that the exercise of the discretion vested in the WBACC by virtue of s 38 of the ALGA in such a way as to decline to grant them leases of Aboriginal Land was tainted by a failure to take into consideration a relevant matter. The plaintiffs alleged that the WBACC is a “public authority” as provided by s 40 of the HRA, which relevantly provides:
(1)Each of the following is a public authority:
(a)an administrative unit;
(b)a territory authority;
(c)a territory instrumentality.
The plaintiffs allege that the functions of the WBACC include functions of a public nature, specifically the provision of public housing: see s 40A HRA. As such, the plaintiffs say, the WBACC were required by s 40B of the HRA to give proper consideration to any human right guaranteed under that Act, including the right of protection of the family guaranteed by s 11. The plaintiffs’ claim, as I understand it, is that the exercise of the WBACC’s discretion in such a way as to refuse them a grant of a lease or leases over Aboriginal Land in Wreck Bay, so as to effectively maintain their family unit in close geographical location, was invalid because the WBACC did not take into account their human rights as guaranteed by s 11 of the HRA.
To establish this claim, the first thing that the plaintiffs must demonstrate is that the WBACC is a public authority as provided by s 40 of the HRA. The first limb of the definition of public authority in s 40, relied upon by the plaintiffs, is that the body is an “administrative unit”. This term is not defined in the HRA, but it is defined for the purposes of all ACT legislation in the Dictionary to the Legislation Act 2001 (ACT) (the Legislation Act) as “an administrative unit for the time being established under the Public Sector Management Act 1994 (ACT) (the PSMA). It is provided in s 13 of the PSMA that the ACT Chief Minister may establish administrative units. The WBACC was not established by the ACT Chief Minister, but was established by the ALGA. As such, the WBACC is not an administrative unit for the purposes of s 40 of the HRA.
The second limb of the definition of public authority in s 40 of the HRA relied upon by the plaintiffs is that the body is a “territory authority”. This term is also not defined in the HRA, but is defined in the Dictionary to the Legislation Act as “a body established for a public purpose under an Act, but does not include a body declared by regulation not to be a territory authority”. To come within this leg of the definition of public authority, it must be shown, amongst other things, that the WBACC is a body established “under an Act”. The Legislation Act, of course, is an ACT enactment, and it sets out in s 7 the meaning of the term “Act” as it is used in the Legislation Act, as meaning an Act of the ACT Legislative Assembly made under the Australian Capital Territory (Self-Government) Act(Cth) (the Self-Government Act). An extended definition of the term “Act” is provided in s 17 of the Legislation Act, as including a reference to a “former Commonwealth enactment”, which in turn is defined to mean, relevantly for present purposes, an enactment within the meaning of the Self-Government Act, by reason of s 34 of that Act, or an enactment by reason of s 10 (3), or s 12 (2) or (3) of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth).
Section 34 of the Self-Government Act provides that a law in Schedule 2 to that Act will be taken to be an ACT enactment. The ALGA is not one of the laws found in Schedule 2 to the Self-Government Act. The provisions of s 10 (3) refer to an Ordinance made before the commencement of self-governance in the ACT, and have no application to the ALGA. Similarly, the provisions of s 12 (2) and (3) of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) make no reference to the ALGA. As such, the WBACC is not a “territory authority” for the purposes of s 40 of the HRA, as it is not a body established “under an Act”.
The third limb of the definition of public authority in s 40 of the HRA relied upon by the plaintiffs is that the body is “a territory instrumentality”. This term is also not defined in the HRA but is defined in the Dictionary to the Legislation Act as meaning a corporation that is established under an Act or statutory instrument, or under the Corporations Act2001 (Cth) (the Corporations Act), and is a territory instrumentality under the PSMA. A “territory instrumentality” under the PSMA is defined as meaning a body corporate that is established by or under an Act, or under the Corporations Act, and-
(a)is comprised of people, or has a governing body comprised of people, a majority of whom are appointed by a Minister or an agent or instrumentality of the Territory; or
(b)is subject to control or direction by a Minister; or
(c)is declared under section 3A to be a territory instrumentality;
but does not include –
(d)at administrative unit; or
(e)a body declared under section 3A not to be a territory instrumentality.
The WBACC is a body corporate: s 4 ALGA. It is not, however, established under an Act or statutory instrument as those terms are used in the Legislation Act. What I have said above about of the meaning of the term “an Act” in the context of the meaning of the phrase “territory authority” applies equally to the requirement that a corporation be established by or under an Act in order to be a “territory instrumentality”. It is clear from the provisions of the Legislation Act that a “statutory instrument” is a reference to an ACT statutory instrument, and it is equally clear that the ALGA is not such a statutory instrument. In addition, the WBACC is not a “territory instrumentality” under the PSMA as it is not comprised of people, and nor is the executive committee comprised of people, a majority of whom are appointed by a Minister, or an agent or instrumentality of the Territory. The WBACC is not a “territory instrumentality” for the purposes of s 40 of the HRA.
I am satisfied that the WBACC is not a public authority for the purposes of the HRA and as such the provisions of s 40B of the HRA do not apply to it.
Central to the majority of the plaintiffs’ submissions is the proposition that the defendants did not have the authority or power to remove them, or the unapproved structures occupied by them, from the Mary Bay Ridge. It is a corollary to that proposition, asserted by the plaintiffs, that the defendants had acted unlawfully in attempting to eject them from the Mary Bay Ridge, and in demolishing, or attempting to demolish, the unapproved structures they occupied. The resolution of this question depends upon the validity of the delegation of the powers of the WBACC concerning land management of the 403 hectare land grant site to the executive committee at the Special General Meeting of the WBACC on 28 January 2007, and, if those powers were validly delegated, the effect of the motions passed by the executive committee on 6 September 2011 and 21 October 2011.
There is no evidence that the Special General Meeting of the WBACC on 28 January 2007 was not properly convened or that the motion delegating its powers concerning land management to the executive committee was not properly passed. The minute book of the WBACC was tendered in evidence, which contained minutes of the meeting including a notation that the motion delegating the WBACC’s powers concerning land management was passed. In my opinion the presumption of regularity applies, and I am satisfied that these powers were delegated to the executive committee on 28 January 2007.
The resolution of the executive committee of 6 September 2011 would not, by itself, authorise the removal of the unapproved structures from the Mary Bay Ridge, or authorise the use of force to achieve that end, including removing residents of the structures. The resolution simply calls upon those residing on the Mary Bay Ridge to relocate within a period of six weeks and to remove any structures and personal chattels. It also provides that no building work is to be permitted outside of the surveyed blocks within Wreck Bay without permission from the WBACC. The motion of the executive committee on 21 October 2011, however, went further. It authorised and directed the WBACC to remove the unapproved dwellings by 7 November 2011, and to enlist the aid of the Australian Federal Police for that purpose.
Individual members of the WBACC do not own the Aboriginal Land which was granted to the WBACC by the ALGA. The land is owned by the WBACC. Individual members may be granted an interest in the land, such as a lease or licence to occupy land, by virtue of the provisions of the ALGA or at the discretion of the WBACC. In the absence of the grant of an individual interest in the land in this way, individual members of the WBACC have no personal legal interest in the land. None of the plaintiffs had any such personal legal interest in Aboriginal Land in Wreck Bay at any relevant time. As the owner of Aboriginal Land in Wreck Bay, the WBACC or its delegate, the executive committee, was entitled to remove unapproved structures from the land and to seek assistance from authorities such as the police to ensure that this was done in an orderly fashion. This entitlement extends to removal of registered members from Aboriginal Land for the purpose of carrying out the resolutions of the WBACC or, if there is a delegation of powers, the executive committee.
The provisions of the ALGA grant registered members a limited form of self-government. As members of the WBACC they are entitled to pass resolutions exercising the powers granted to the WBACC by the ALGA with respect to those functions set out in s 6. Where the WBACC delegates its power to the executive committee pursuant to s 36, the executive committee may exercise that power. It is important to recollect this basic fact when considering some of the complaints made by the plaintiffs in these proceedings. It is not for this Court to determine whether actions pursued by the WBACC or the executive committee are, to use the descriptions of the plaintiffs, “culturally inappropriate” or “culturally wrong”. The WBACC and the executive committee consist of indigenous men and women, and it is for them, in exercising the powers that they have, to decide what is culturally appropriate. Similarly, it will usually be for the registered members acting through the WBACC or the executive committee to determine whether the exercise of powers granted by the ALGA in a particular manner is for the benefit of the community.
To the extent that the plaintiffs allege that the defendants breached the provisions of the Commonwealth Authorities and Companies Act 1997 (Cth) there is simply no evidence to support that allegation. There is no evidence that the defendants did not act with due care and diligence in the performance of their functions, nor that they did not act in good faith or for some improper purpose. The evidence, in fact, is quite to the contrary. The evidence establishes that the defendants were properly concerned about heritage, environmental and health issues arising out of the unapproved structures on the Mary Bay Ridge, and their occupation by the plaintiffs. On the basis of this evidence, the plaintiffs’ claim that the defendants exercised their powers unreasonably must also fail.
The allegations by the plaintiffs of breaches by the defendants of the provisions of the Administrative Decisions (Judicial Review) Act1977 (Cth) are misconceived. These provisions simply have no relevant application to the present dispute.
The bare allegation made in the plaintiffs’ Statement of Claim that the defendants breached the rules of natural justice was not supported by evidence. I am satisfied that the WBACC and the executive committee had made no secret of the fact that for some years they wanted those on the Mary Bay Ridge to vacate that land and to remove their unauthorised structures and other goods. The plaintiffs had the right, and the opportunity, to address that issue through the WBACC, either at an Annual General Meeting or at a Special General Meeting. I am further satisfied that the executive committee endeavoured to notify all those who may have been directly affected by the decision to clear the Mary Bay Ridge, although it is possible that some did not receive the notification.
The Statement of Claim contains allegations that procedures for the conduct of meetings and decision-making were not observed by the defendants; that the defendants made the decision to remove the plaintiffs and other occupants of the Mary Bay Ridge without proper evidence or other materials to justify the decision; that the defendants had exercised their discretionary powers in bad faith; and that they had exercised their discretionary powers at the direction of another. There was simply no evidence to support any of these allegations.
At paragraph 26 of the Statement of Claim the plaintiffs seek to rely upon the United Nations Declaration on the Rights of Indigenous Peoples. It is sufficient to note that this declaration does not have the force of law in Australia. The plaintiffs also seek to rely upon the provisions of s 211 of the Native Title Act 1993 (Cth) (the Native Title Act), but it is clear that this will not assist them. That provision would have the effect of limiting a law prohibiting or restricting a native title holder from carrying on an activity falling within the classes of activity set out in that section. If the plaintiffs came within a class of persons recognised as native title holders for the purposes of the Native Title Act, the effect of s 211 may be to entitle them to have access to land over which they hold native title, but their entitlement would not extend to residing on the land or constructing unauthorised structures on the land. I express no view on the question of whether the plaintiffs fall within a class of persons who may be described as native title holders for the purposes of the Native Title Act and with respect to land granted to the WBACC by the ALGA.
The plaintiffs are not entitled to the relief they seek, and their application is dismissed.
I have reached the conclusion that the actions of the executive committee in undertaking the demolition and removal of the unapproved structures on the Mary Bay Ridge were lawful without the necessity of relying upon the provisions of the by-laws. The relief sought by the defendants in the counterclaim, however, depends entirely upon the validity of the by-laws.
In the course of preparing these reasons I became concerned that the bylaws may be invalid, as having been passed by the executive committee without an appropriate delegation from the WBACC. I sought further submissions from the parties, and on 12 November this year I granted the defendants leave to reopen their case and to lead further evidence on this issue. This evidence was in the form of an affidavit affirmed by Reuben Charles Ardler on 10 November this year. In his affidavit, Mr Ardler deposed to the fact that on 20 October 1991, an Annual General Meeting of the WBACC resolved to delegate to the executive committee all of its powers under the ALGA, except the power of delegation, as permitted by s 36 of that Act. This delegation remained in force until it was revoked on 15 October 2006 at a Special General Meeting of the WBACC. It is clear from s 52A of the ALGA that the by-laws are made by being passed by the WBACC or, where there is an appropriate delegation, the executive committee. The commencement of the by-laws may be delayed to a later date, but the by-laws themselves are made at the time that they are passed by the WBACC or the executive committee. I am satisfied based upon the evidence of Mr Ardler that the executive committee had an appropriate delegation permitting it to make the by-laws as at 28 November 2005. The plaintiff submitted that the by-laws were invalid because they did not come into effect until 1 July 2006, after the delegation to the executive committee had been revoked. This submission, with respect, is without merit. The executive committee had the power to make the by-laws as at the date it did, and the fact that the by-laws did not come into effect until a later date is irrelevant. I am therefore satisfied that the by-laws are valid.
I am satisfied that the plaintiffs have been occupying the Mary Bay Ridge without the consent or approval of the WBACC or the executive committee, which exercises the delegated power of the WBACC concerning land management within the 403 hectare land grant, at least since 6 September 2011. To the extent that any of the plaintiffs continue to occupy land on the Mary Bay Ridge, either personally or by structures or chattels left on the land, they do so without that consent or approval. I am satisfied that the executive committee has the power to grant or withhold permission to any person, even members of the WBACC, to occupy Aboriginal Land pursuant to the delegation of powers to the executive committee by the WBACC on 28 January 2007. This power, of course, is subject to any right to occupy Aboriginal Land lawfully granted by the WBACC, such as a lease granted under the ALGA. None of the plaintiffs possess such a right. At best, they possessed a bare licence to occupy land on the Mary Bay Ridge, which has now been revoked.
The defendants seek a declaration that to the extent that, if the plaintiffs or their immediate families continue to occupy Aboriginal Land on the Mary Bay Ridge, they are camping for the purposes of by-law 5.25 (1) of the by-laws and in contravention of that provision. The Macquarie Dictionary defines “camp”, when used as a verb, to mean “to establish or set up a camp”. This directs attention to the meaning of the word as a noun, for which the relevant definition is “a group of tents, caravans, or other temporary shelters in one place”. This aptly describes the collection of sheds, caravans and other temporary structures occupied by the plaintiffs on the Mary Bay Ridge. The fact that some of these structures were erected prior to the making of the by-laws does not deprive the WBACC of the entitlement to enforce the by-laws against continuing breaches occurring during their operation. I am satisfied that the occupation of Aboriginal Land on the Mary Bay Ridge by the plaintiffs is camping for the purposes of by-law 5.25 (1). I have already found that the occupation of the land is without the consent of the WBACC and, as such, it is in contravention of that by-law.
On 10 December 2012, the executive committee resolved to appoint Reuben Ardler, Neville Hampton and Mal Hansen as wardens pursuant to by-law 6.02. Each satisfies the requirement that they be an officer or employee of the WBACC. By 10 December 2012 the general delegation of powers to the executive committee by the WBACC made on 20 October 1991 had been revoked, and had been replaced with a limited delegation at the Special General Meeting of 28 January 2007. The powers delegated to the executive committee at this meeting included, relevantly for present purposes, the power to do all things necessary or convenient to be done for or in connection with the performance of the function of land management of the 403 Hectare land grant, including Wreck Bay Village. In my opinion this delegation must extend to a power to appoint wardens to enforce the by-laws concerning land management, including those by-laws concerned with camping on Aboriginal Land. To the extent that the appointment of these wardens was to enforce the by-laws concerned with land management, those appointments were valid.
The defendants also seek a declaration that service of a notice in the form of the notice annexed to the Amended Defence and Counterclaim to the plaintiffs and other nominated members of their families will be effective for the purposes of by-law 5.25 (6) to give the required notice to those persons. I am satisfied that is the case, and that it is appropriate that such a declaration be made.
The plaintiffs, in their Answer to the Counterclaim, alleged that the defendants were estopped from seeking to eject them from the Mary Bay Ridge. There is no merit in this assertion. The plaintiffs, I am satisfied, were not the subject of any representation that they would be allowed to indefinitely occupy Aboriginal Land on the Mary Bay Ridge, and no other basis for an estoppel has been raised.
Orders
The plaintiffs’ claims are dismissed. On the Counterclaim I make the following declarations:
(a)that the executive committee has power to grant or withhold permission to any person to occupy Aboriginal Land pursuant to the delegation of powers by the WBACC to the executive committee on 28 January 2007;
(b)that the occupation of the area of Aboriginal Land known as the Mary Bay Ridge by Walter Sean Stewart, Harold John Stewart, May Stewart, Steven Stewart and Marica Palibino (and their children Jessica, Aiden, Coen, Zahars and Layla), Douglas Green and Corey Green is:
(i)camping for the purposes of by-law 5.25 (1) of the Aboriginal Land Grant (Jervis Bay Territory) By-laws 2005;
(ii)being carried out without the permission of the WBACC; and
(iii)in contravention of by-law 5.25 (1).
(c)That a notice in the form of Annexure A to the Amended Defence and Counterclaim to those persons named in b) above shall be effective for the purposes of by-law 5.26 (6) to give notice to those persons;
(d)That the resolution of the executive committee of 10 December 2012 is effective to appoint the persons named therein as wardens pursuant to by-law 6.01.
I order the plaintiffs to pay the defendants’ cost of the proceedings, unless an application for a different costs order is made within 14 days.
| I certify that the preceding ninety seven [97] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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