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Torres Strait Island Regional Council v Ahwang[2022] QCA 39

Torres Strait Island Regional Council v Ahwang[2022] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

Torres Strait Island Regional Council v Ahwang [2022] QCA 39

PARTIES:

TORRES STRAIT ISLAND REGIONAL COUNCIL

(appellant)

v

ALONZA AHWANG

(respondent)

FILE NO/S:

Appeal No 8043 of 2021

SC No 219 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns – [2021] QSC 147 (Henry J)

DELIVERED ON:

22 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2021

JUDGES:

Mullins JA and Boddice and Crow JJ

ORDERS:

  1. 1.Appeal dismissed.
  2. 2.The appellant must pay the respondent’s costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where a threshold issue before the primary judge was whether s 135(1) of the Torres Strait Islander Land Act 1991 (Qld) (the Act) applied to the appellant’s decision not to grant a home ownership lease to the respondent – where the primary judge applied the ordinary meaning interpretation of s 135(1) of the Act – where the appellant submits s 135(1) of the Act should be given a literal interpretation – whether the primary judge erred in the interpretation of s 135(1) of the Act

Torres Strait Islander Land Act 1991 (Qld), s 6, s 7, s 8, s 9, s 10, s 28A, s 28B, s 28D, s 28I, s 64, s 85, s 134, s 135

COUNSEL:

M A Jonsson QC for the appellant

C J Ryall for the respondent

SOLICITORS:

Preston Law for the appellant

Atherton Tablelands Law for the respondent
  1. [1]
    MULLINS JA:  The respondent, Mr Ahwang, was successful in his application for statutory order of review against the decision of the Torres Strait Island Regional Council made on 23 July 2019 to grant a lease for 99 years of a specific residential property at St Pauls on Moa Island to Mr Anthony Pilot.  The learned primary judge set aside the Council’s decision and ordered that the expressions of interest of Mr Ahwang and Mr Pilot in being granted a home ownership lease of the subject property be referred to the Council for consideration afresh: Ahwang v Torres Strait Island Regional Council [2021] QSC 147 (the reasons).  The Council was ordered to pay Mr Ahwang’s costs of the proceeding with enforcement of that order stayed, pending the determination of this appeal.
  2. [2]
    The Council is the trustee of the St Pauls Deed of Grant in Trust (DOGIT) which is a grant of land in fee simple which includes the subject property.  As trustee of the DOGIT, the Council is the owner of the property.  The DOGIT expressly obliges the Council in its capacity as trustee to “hold the land in trust to the benefit of Islander inhabitants”.
  3. [3]
    There were two complaints pursued by Mr Ahwang before the primary judge about the decision-making process undertaken by the Council pursuant to s 135 of the Torres Strait Islander Land Act 1991 (Qld) (the Act).  He was unsuccessful in relation to one complaint, but succeeded on the complaint that the conduct of the Council for the purpose of making the decision on whether to grant the lease to Mr Ahwang (or to Mr Pilot) was not a “decision-making process” as contemplated by s 135(2)(b).
  4. [4]
    A threshold issue before the primary judge was whether s 135 of the Act applied to the decision made by the Council.  The Council argued for an interpretation of s 135 that would support its position that s 135 of the Act did not apply to the decision.  The trial judge rejected (at [23]-[29] of the reasons) the Council’s interpretation of s 135.
  5. [5]
    The relevant grounds of appeal are:
    1. (a)
      the primary judge erred in concluding that s 135 of the Act should be read as referring to a situation in which a decision already falls to be made, so that the word “required” in s 135(1) relates not to the need for a decision to be made, but to the need for the trustee to be the entity which makes the decision; and
    2. (b)
      the primary judge erred in concluding that the Council’s decision-making process by which it determined to grant the lease of the subject property to Mr Pilot had to comply with s 135 of the Act.

Relevant legislation

  1. [6]
    As the Council’s decision was made on 23 July 2019, the reprint of the Act that applied to the decision was the reprint current from 24 May 2019 to 19 May 2021 (the 2019 reprint).  Unless it is apparent in these reasons that the reference is to a provision in an earlier version of the Act, the references in these reasons to the Act are to the 2019 reprint.
  2. [7]
    The meaning of “Island custom” is set out s 6 of the Act:

“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.”

  1. [8]
    The term “Torres Strait Islander land” is defined in s 7 of the Act to mean transferred land.  The meaning of “transferable land” and “transferred land” is set out in s 8 of the Act as:
  1. “(1)
    Transferable land is land that is to be granted under part 4.
  2. (2)
    Transferred land is land that is granted under part 4.”
  1. [9]
    Section 9 of the Act then sets out what lands are transferrable lands and that includes DOGIT land, Torres Strait Islander reserve land and available State land that the Minister declares to be transferable land.  The subject DOGIT is DOGIT land within the meaning of s 10 of the Act.
  2. [10]
    Part 2A was inserted into the Act by the Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 (Qld) (the 2014 Act).  Section 28A of the Act sets out the overview of part 2A in terms that it allows available land to be granted in freehold under the Land Act 1994 (Qld) to an eligible person (as defined in s 28B) for the available land, requires the trustee of freehold option land to consult on and make a freehold instrument and the local government for the area in which the land is situated to attach the freehold instrument to its planning scheme and sets out how, and to whom, the trustee may allocate available land depending on whether the person is an eligible person.  The meaning of “available land” is found in s 28D of the Act.  Under s 28D(1), the trustee of freehold option land may, by resolution, make a schedule identifying the freehold option land available to be granted in freehold.  Section 28B of the Act sets out the definition for “freehold option land” as land in an indigenous local government’s area, if any of an indigenous local government, a land trust or another entity holding the land under the Act is the trustee of the land, and the land is in an urban area.  Section 28I(1) of the Act requires the trustee of freehold option land to decide on the way (which is then referred to as “the decided way”) in which the trustee will consult about the making of the freehold instrument before the trustee starts the process of making a freehold instrument in relation to freehold option land.  The note to s 28I(1) states “See section 135”.  (It is the only provision in the Act with a note in those terms.)  Section 28I(2) states the purpose of the consultation is to enable the trustee to be reasonably satisfied it is appropriate for the freehold option land to be granted in freehold.  Section 28I(3) specifies restrictions that apply to the decided way.  The decided way must require the trustee to consult with the native title holders for the freehold option land proposed to be included in the freehold schedule, include how the trustee will notify the community about the freehold instrument, and allow a suitable and sufficient opportunity for each person the trustee consults to express their views about the freehold instrument.  The trustee is obliged by s 28I(4) to consult on the freehold instrument in the decided way and keep records about the consultation showing the consultation was consistent with the decided way.
  3. [11]
    For the purpose of the interpretation of s 135, it is unnecessary to refer to parts 3 to 6 of the Act.
  4. [12]
    Part 7 of the Act contains general provisions for dealing with Torres Strait Islander land.  Section 64 of the Act was inserted by the Aboriginal Land and Torres Strait Islander Land and Other Legislation Amendment Act 2011 (Qld) (the 2011 Act).  (Section 64 was amended by the 2014 Act, but not in a way that affects the issue in this appeal.  There had been a similar provision to s 64 in the reprint of the Act effective 14 October 2010 in s 36 that conferred powers in similar terms on the grantees of transferred land.)  By s 64(1), the section is made expressly subject to parts 2A, 7 and 8.  Section 64(2) of the Act provides:
  1. “(2)
    The trustee of Torres Strait Islander land may—
  1. (a)
    grant, transfer or otherwise create an interest in, or in relation to, the land in the way the trustee considers appropriate, including, for example, by—
  1. (i)
    granting a lease or licence over all or a part of the land; or
  2. (ii)
    consenting to the creation of a mining interest in the land; or
  3. (iii)
    granting an easement over the land; or
  4. (iv)
    entering into a conservation agreement under the Nature Conservation Act 1992, section 45, for the land; or
  5. (v)
    entering into an agreement with the State or the Commonwealth in relation to the getting and sale of forest products or quarry material above, on or below the land; or
  1. (b)
    dedicate a part of the land to public use by registering a plan of subdivision under the Land Title Act, part 4, division 3; or
  2. (c)
    surrender all or a part of the land to the State.”
  1. [13]
    Part 8 of the Act regulates leasing of Torres Strait Islander land.  Subsections (1) and (2) of s 85 of the Act which is in part 8 provide:
  1. “(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. (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—
  1. (a)
    a Torres Strait Islander;
  2. (b)
    a person who is not a Torres Strait Islander if—
  1. (i)
    the person is the spouse or former spouse of—
  1. (a)
    a person mentioned in paragraph (a); or
  2. (b)
    a person mentioned in paragraph (a) who is deceased; or
  1. (ii)
    the lease supports another part 8 lease granted to the person.”
  1. [14]
    Part 9 of the Act deals with “Decision-making process”.  It was first inserted as part 5 of the Act by the 2011 Act.  The sections in the Act were then immediately renumbered and part 5 (containing s 79 and s 80) became part 9 (containing s 134 and s 135).  Section 135 of the Act provides:
  1. “(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—
  1. (a)
    the way in which the trustee will consult about the making of a freehold instrument for the land;
  2. (b)
    whether to grant an interest in the land;
  3. (c)
    whether to consent to the creation of a mining interest in the land;
  4. (d)
    whether to enter into an agreement about the land.
  1. (2)
    The trustee must—
  1. (a)
    have regard to—
  1. (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
  2. (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
  1. (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.”
  1. [15]
    To the extent that s 64(2) of the Act may overlap with s 85(1) and (2), the provisions in s 85 prevail due to the application of s 64(1).
  2. [16]
    It is not necessary to have regard to any other parts of the Act for the purpose of interpreting s 135.

The reasons

  1. [17]
    The application before the primary judge proceeded on the basis that the Council’s decision was an exercise of the power conferred by s 85 of the Act.  The primary judge set out the Council’s argument (at [18] of the reasons) that s 85 of the Act does not require the Council as trustee to make a decision about the land, as s 85(1) uses “may” not “must” with the consequence that s 135 has no application to the trustee’s decision, as it applies only when the trustee “is required” to make a decision about the land.  The primary judge noted (at [19] of the reasons) that it was critical to the Council’s submission that the reference in s 135(1) to “is required” refers to a positive obligation imposed on the trustee to actually make a decision, whereas the competing view is that the reference is to the required identity of the decision-maker, namely the trustee, as distinct from some other decision-maker.
  2. [18]
    The primary judge observed (at [23] of the reasons) that the Council’s argument was that the requirement for the purpose of s 135(1) “goes to the necessity of making a decision at all”.  The primary judge considered (at [23]) that such an approach is not needed in order to give meaning to s 135(1) and stated:

“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’).”

  1. [19]
    The primary judge noted (at [25] of the reasons) that it was “contextually significant” that s 135 is within the Act’s part 9 “Decision-making process”.  The only other provision in part 9 is s 134 which applies if the Act provides that Torres Strait Islanders be generally in agreement with a grant, consent or agreement about Torres Strait Islander land and provides when the agreement of the Torres Strait Islanders is taken to have been given.  The primary judge noted (at [25]) that s 134 “is a deeming provision dependent upon the nature of the process of decision-making by which a decision was made”.  The primary judge considered (at [25]) that was a powerful contextual indication in conjunction with the heading of s 135 “Decision-making by trustee” 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”.  The primary judge concluded (at [25]) that the ordinary meaning interpretation is the correct interpretation of s 135, as “the section applies when a decision which falls to be made about land is a decision which it is for the trustee to make”.
  2. [20]
    The Council had also relied on the explanation for the new part 5 “Decision-making process” in the Explanatory Notes for the Bill that was enacted as the 2011 Act:

“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.”

  1. [21]
    The primary judge rejected (at [27] of the reasons) that submission on the basis it was not apparent how the Explanatory Notes provided any support for the Council’s interpretation in preference to the ordinary meaning interpretation.
  2. [22]
    It is unnecessary to set out the reasoning by which the primary judge concluded that there had been a lack of compliance with s 135(2)(b) of the Act, as the only issue agitated on this appeal is whether, as a matter of construction of s 135 of the Act, that provision applied to the Council’s decision.  The appellant accepts that it cannot otherwise challenge the primary judge’s decision.

The relevant history of the Act

  1. [23]
    The Act has undergone considerable amendment since it was enacted in 1991.  One constant has been the preamble which provides:
  1. “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.
  2. 2
    Land is of spiritual, social, historical, cultural and economic importance to Torres Strait Islanders.
  3. 3
    After European settlement many Torres Strait Islanders maintained their ancestors’ customary affiliation with particular areas of land.
  4. 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.
  5. 5
    Some Torres Strait Islanders have a requirement for land to ensure their economic or cultural viability.
  6. 6
    Some land has been set aside for Torres Strait Islander reserves or for the benefit of Torres Strait Islanders and deeds of grant in trust are held on behalf of certain Torres Strait Islanders.
  7. 7
    The Parliament is satisfied that Torres Strait Islander interests and responsibilities in relation to land have not been adequately and appropriately recognised by the law and that this has contributed to a general failure of previous policies in relation to Torres Strait Islanders.
  8. 8
    The Parliament is further satisfied that special measures need to be enacted for the purpose of securing adequate advancement of the interests and responsibilities of Torres Strait Islanders and to rectify the consequences of past injustices.
  9. 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.”
  1. [24]
    Despite the preamble remaining unchanged, there have been changes in how the Parliament has sought to carry out its intention of enacting special provisions for the adequate and appropriate recognition of the interests and responsibilities of Torres Strait Islanders in relation to land.
  2. [25]
    Prior to 2008, a lease granted by the trustee of trust lands under the Act was generally limited to a term of 30 years and required the approval of the Minister.  In 2008, the Act was amended to introduce terms up to 99 years for particular lease purposes.
  3. [26]
    The 2011 Act was extensive and, according to the Explanatory Notes (at pp 2-3) for the Bill that became the 2011 Act, was enacted after a review of the Act and the Aboriginal Land Act 1991 (Qld) that was undertaken to improve the alignment of those Acts with the Native Title Act 1993 (Cth), to improve the efficiency of the administration of those Acts in many respects, including by rationalising the entities that hold land, and to address unintended consequences as a result of previous enactments.
  4. [27]
    According to the Explanatory Notes (at p 1) for the Bill that was enacted as the 2014 Act, a significant policy objective of the Bill was to introduce the option of ordinary freehold title into Aboriginal and Torres Strait Islander communities.  That explains the insertion of part 2A into the Act.  Another policy objective of the 2014 Act (at pp 1-2 of the Explanatory Notes) was to simplify the leasing framework that applies to Indigenous land to reduce the regulatory burden on trustees and lessees in respect of non-home ownership leases.
  5. [28]
    One of the amendments made by the 2014 Act was to replace previous part 8 with a new part 8 which amended provisions dealing with the leasing of Torres Strait Islander land.  The only amendment made by the 2014 Act to the content of s 135 of the Act was to add an additional matter to the list of decisions given as examples of the decisions to which s 135(1) applies.  That additional matter is set out in paragraph (a) of s 135(1) as “the way in which the trustee will consult about the making of a freehold instrument for the land”.

The Council’s submissions

  1. [29]
    The Council relies largely on the same submissions that were made to the primary judge.  On the basis that the empowering provision in the Act for the grant of the relevant lease is s 85 of the Act, the Council submits that a decision under s 85(1) of the Act was not a decision of a kind that engages the operation of s 135 of the Act, as the Council as trustee was not compelled to make a decision about Torres Strait Islander land.  By its terms, s 85 confers a discretion upon the relevant decision-maker as to whether to make a decision of the kind contemplated by that provision.  The use of the permissive “may” in each of s 85(1) and s 85(2) should be construed as conferring a power that might or might not be exercised at the trustee’s discretion.  That approach to the construction of s 85 is consistent with s 32CA(1) of the Acts Interpretation Act 1954 (Qld) which provides:

“In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.”

  1. [30]
    The Council therefore submits that the literal interpretation of s 135(1) is that it applies to a decision which must be made under the Act by the trustee of Torres Strait Islander land and therefore does not apply to the exercise of the power conferred in permissive terms on the trustee under s 85(1) of the Act.
  2. [31]
    To support this literal interpretation of s 135(1) of the Act, the Council draws the distinction between s 85(1) and a decision required of the trustee under s 28I(1) of the Act which the trustee is compelled to make about the way in which it will consult about the making of a freehold instrument in relation to freehold option land.
  3. [32]
    Apart from these textual considerations, the Council seeks to support its literal interpretation of s 135(1) of the Act by reference to the extrinsic material relevant to the 2011 Act and the 2014 Act.  The Council continues to press the submission rejected by the primary judge as to the significance in the Explanatory Notes (at p 53) for the Bill enacted as the 2011 Act of the explanation for the insertion of part 5.  In addition, the Council supports its position by reference to some aspects of the amendments made by the 2014 Act.
  4. [33]
    Section 65 was inserted in the Act by the 2011 Act with the heading “Requirement for consultation”.  (There had been a similar provision to s 65 in the reprint of the Act effective 14 October 2010 in s 37 that applied to grantees of transferred land.)  Section 65 provided:
  1. “(1)
    The trustee of Torres Strait Islander land must not deal with the land unless—
  1. (a)
    the trustee has explained to the Torres Strait Islanders particularly concerned with the land the nature, purpose and effect of the dealing; and
  2. (b)
    the Torres Strait Islanders are given a suitable opportunity to express their views on, and are generally in agreement with, the dealing.
  1. (2)
    Despite section 82, dealing with land in contravention of subsection (1) is not void under that section.
  2. (3)
    In this section—

deal, with land, means—

  1. (a)
    grant a lease, other than under section 84(1)(a)(i) for private residential purposes, for more than 10 years over the land; or
  2. (b)
    grant a licence for the use of the land for more than 10 years; or
  3. (c)
    grant or otherwise create an interest in, or in relation to, the land, other than—
  1. (i)
    a residential tenancy; or
  2. (ii)
    a lease or licence for the use of the land for not more than 10 years; or
  3. (iii)
    a lease under section 84(1)(a)(i) for private residential purposes; or
  1. (d)
    dedicate a part of the land to public use; or
  2. (e)
    surrender any of the land to the State.

trustee, of Torres Strait Islander land, does not include a registered native title body corporate.”

  1. [34]
    That provision was in part 7 that set out general provisions for dealing with Torres Strait Islander land which was defined in s 7 of the Act to be transferred land.  Transferred land was defined in s 8(2) of the Act to mean land granted under part 4 of the Act.  Section 65 was omitted from the Act by the 2014 Act.  The Council also relies on the Explanatory Notes for the Bill which was enacted as the 2014 Act which showed that one of the policy objectives of the Bill was to “Simplify the leasing framework that applies to Indigenous land to reduce the regulatory burden on trustees and lessees” and that was reflected by the omission of s 65 by the 2014 Act.
  2. [35]
    The appellant’s reliance on the extrinsic material is misplaced.  First, the paragraph in the Explanatory Notes relevant to the insertion of the new part 5 by the 2011 Act refers to the effect of the two sections found in part 5.  The reference to part 5 providing for an alternative decision-making process applied to s 79 (that became s 134).  The latter part of the explanation that refers to part 5 providing “for when a trustee must make a decision about the land” applied to s 80 (that became s 135).  If there were an ambiguity in s 135, the brief statement in this paragraph in the Explanatory Notes relevant to the 2011 Act does not assist in resolving the ambiguity.  The use of “must” in the Explanatory Note for the new part 5 reflects the use of the word “is required” in s 135(1) and adds nothing to its interpretation.  Second, the omission of s 65 by the 2014 Act was explained in the Explanatory Notes (at p 46) as a consequence of “the requirements for consultation are dealt with under the new provisions providing freehold in new Part 2A” which relates particularly to s 28I of the Act.  Third, it is also apparent from the section of the Explanatory Notes (at p 2) relevant to the 2014 Act dealing specifically with lease simplification that the lease simplification related to non-home ownership leases which is not relevant to s 85(2) of the Act which concerns the granting of a home ownership lease.

Did the primary judge err in the interpretation of s 135(1) of the Act?

  1. [36]
    The exercise of the power of the trustee to grant a lease under s 85(1) of the Act is expressed in permissive terms, as the trustee is empowered to grant a lease (which it is not bound to do) and is empowered to grant a lease for a term of not more than 99 years (which means generally a choice about the length of the term of the particular lease).  There is therefore a discretion conferred on the trustee at least about whether to grant the lease and the term for which the lease is to be granted, provided it is for not more than 99 years.  In this matter, the grant of a home ownership lease proceeded under s 85(2) which is also expressed in permissive terms, as, without limiting s 85(1), the trustee may grant a home ownership lease over all or part of the land for 99 years to specified categories of persons for residential use.  The term of a home ownership lease is therefore specified to be for 99 years, but a discretion is conferred on the trustee at least about whether to grant the lease.
  2. [37]
    By its express terms, s 135(1) contemplates that where a trustee is required to decide about the land including any of the matters listed as examples in paragraphs (a) to (d), it is making a decision in respect of which the trustee has a discretion in respect of at least some aspects of the decision.  For example, that is the plain meaning of what is meant by “to make … a decision about … whether to grant an interest in the land” that is referred to in paragraph (b) of s 135(1).  To the extent the trustee is required to decide whether to exercise that discretion, it is bound to make the decision, having regard to the matters that are set out in s 135(2).  The Council placed emphasis on the mandatory consultation required of a trustee under s 28I(1) of the Act and sought to draw a distinction between the compulsion on the trustee to consult and the exercise of the power conferred on the trustee under s 85(1) of the Act in permissive terms.  The Council is correct that s 28I of the Act requires the trustee to make a decision on the way in which the trustee will consult about the making of the freehold instrument.  There is still discretion conferred on the trustee in deciding on the method of consultation.  The reference to the note to “See section 135” which is at the end of s 28I(1) does not have the significance placed on it by the Council, when the other matters listed in paragraphs (b) to (d) of s 135(1) relate to other provisions of the Act and there is no reference to s 135 in a note to any of those provisions and yet s 135 remains applicable.  The Council’s focus on the mandatory consultation required of a trustee under s 28I(1) also ignores the discretionary nature of the decisions covered by the examples in paragraphs (b) to (d) of s 135(1).  In addition, s 135(1) specifically contemplates by its terms that the matters listed in paragraphs (a) to (d) are examples only and there will therefore be other provisions in the Act (for which there is no note referring to s 135) to which s 135(1) will apply.
  3. [38]
    By its terms, s 135 of the Act ensures that when a trustee of Torres Strait Islander land makes a decision about the land, it does so by complying with the process that has been agreed to by the Torres Strait Islanders for whom the trustee holds the land (referred to in s 135(2)(a)(i)) or, if there is no agreed decision-making process, by reference to any Island custom for decisions of that kind of the Torres Strait Islanders for whom the trustee holds the land (referred to in s 135(2)(a)(ii)).  Failing the application of s 135(2)(a), s 135(2)(b) provides for the trustee to make the decision under a process of decision-making agreed to and adopted by the trustee for decisions of that kind.  The purpose of s 135 is to ensure consistency in relevant decision-making by a trustee and protection of the interests of Torres Strait Islanders with particular concern for the land in question by the trustee’s having regard to a hierarchy of decision-making processes and following the process that applies in the circumstances.  The interpretation of the primary judge (at [23] of the reasons) that the requirement in s 135(1) is a reference to the identity of the decision-maker being the trustee of the relevant Torres Strait Islander land is not only the ordinary meaning of the provision, but one which gives effect to the purpose of s 135 of the Act that is apparent from its terms in the context of the Act that is concerned with the adequate and appropriate recognition of the interests and responsibilities of Torres Strait Islanders in relation to land (referred to in paragraphs 7, 8 and 9 of the preamble to the Act).  There was no error by the primary judge in applying the ordinary meaning interpretation of s 135(1) of the Act.

Orders

  1. [39]
    It follows that the order that should be made is: Appeal dismissed.  The respondent seeks an order that the appellant pays his costs of the appeal.  There is no reason why costs should not follow the event.  The formal orders therefore are:
  1. 1.Appeal dismissed.
  2. 2.The appellant must pay the respondent’s costs of the appeal.
  1. [40]
    BODDICE J:  I agree with Mullins JA.
  2. [41]
    CROW J:  I agree with Mullins JA.
Close

Editorial Notes

  • Published Case Name:

    Torres Strait Island Regional Council v Ahwang

  • Shortened Case Name:

    Torres Strait Island Regional Council v Ahwang

  • MNC:

    [2022] QCA 39

  • Court:

    QCA

  • Judge(s):

    Mullins JA, Boddice J, Crow J

  • Date:

    22 Mar 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

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