Noble v Yarrabah Aboriginal Shire Council
[2024] QLC 19
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- Unreported Judgment
- Noble v Yarrabah Aboriginal Shire Council[2024] QLC 19
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Noble v Yarrabah Aboriginal Shire Council[2024] QLC 19
Noble v Yarrabah Aboriginal Shire Council[2024] QLC 19
LAND COURT OF QUEENSLAND
CITATION: | Noble v Yarrabah Aboriginal Shire Council [2024] QLC 19 |
PARTIES: | Glennis Noble (applicant) v Yarrabah Aboriginal Shire Council (respondent) |
FILE NO: | LCA163-24 |
PROCEEDING: | Application for injunction under the Land Court Act 2000 and adverse possession |
DELIVERED ON: | 30 September 2024 |
DELIVERED AT: | Brisbane |
HEARD ON: | On the papers |
HEARD AT: | Brisbane |
MEMBER: | JR McNamara |
ORDER: | I declare that the proceeding LCA163-24 has not, for want of jurisdiction, been properly started. The proceeding is dismissed. |
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where the applicant claims adverse possession – where the Land Court does not have the power to hear or decide an application for adverse possession – jurisdiction of the Land Court – whether the proceeding has been properly started ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the applicant alleges harm to cultural heritage – where the harm alleged is not continuing – whether the Land Court has the jurisdiction to grant a stop order in the circumstances |
APPEARANCES: | Not applicable |
Background
- [1]The applicant, Ms Noble, filed an Originating Application in the Land Court Registry on 12 June 2024. The grounds for the orders sought in the Originating Application state: “I’m seeking adverse possession of the parcel of land (Lot 616 SP 167913)”. The respondent Yarrabah Aboriginal Shire Council (YASC) is the trustee of the Yarrabah Deed of Grant in Trust (DOGIT) within which sits Lot 616.
- [2]The facts stated in support of the application are that Ms Noble’s family have been ‘caretakers of the land’ in question for ‘the past two decades’ with no objection from the respondent as the trustee council; and Ms Noble’s family have a ‘cultural and sacred connection’ to the land arising from ‘traditional birth practice’ in relation to Ms Noble’s first grandchild and a family pet (sites). Ms Noble claims that both sites have been desecrated by the YASC. Ms Noble says the YASC has breached their cultural heritage duty of care and in response, that there should be ‘fair compensation’.
- [3]On 28 June 2024, I made orders requiring Ms Noble to file and serve a statement of facts and issues (SFI), including all evidence relied on in support of the Originating Application. Ms Noble filed the SFI on 26 July 2024. The outcome Ms Noble seeks is “either the transfer of the property located at 14 Smith Street, Yarrabah, or the sum of $161,300 as appropriate compensation for the emotional trauma, pain and harm caused by the council’s actions.”
- [4]At a review of this matter on 9 August 2024, the YASC raised issues concerning the jurisdiction of this court to hear and determine the originating application. I made orders requiring the YASC to file and serve submissions in relation to their submission that the application should be dismissed, and for Ms Noble to file and serve a response, if any, to the YASC’s submissions. Both parties filed submissions.
- [5]A further review was conducted on 13 September 2024. At that review, having indicated to the parties that I intended to decide the future of this application on the written material, Ms Noble made a statement where she said that a house currently being constructed on Lot 616 was nearing completion and that it was likely the YASC would install an occupant before I decided the application. This statement is presumably directed to the statutory power the Land Court possesses to grant an injunction under s 32H of the Land Court Act 2000 (Land Court Act) to stop the doing of an act of the kind described in ss 24, 25 or 26 of the Aboriginal Cultural Heritage Act 2002 (ACHA).
- [6]For the reasons that follow I am of the view that the evidence does not support the grant of an injunction under s 32H of the Land Court Act 2000 to prevent unlawful harm to Aboriginal cultural heritage (s 24 ACHA); to prohibit the excavation, relocation or taking away of Aboriginal cultural heritage (s 25 ACHA); or in relation to the possession of an object that is Aboriginal Cultural heritage (s 26 ACHA).
- [7]I am also of the view that I lack the power to award Ms Noble adverse possession of Lot 616, and I lack the power to award compensation for any emotional trauma, pain and harm caused as a result of actions taken with respect to Lot 616.
The Application
- [8]There appear to be 2 bases for the relief sought in the application: a claim for adverse possession; and a claim for injunctive relief under section 32H of the Land Court Act.
- [9]Ms Noble’s 30 August 2024 submissions in response to the YASC 16 August 2024 submissions that the application should be dismissed introduced additional matters either specifically or tangentially. There is reference in the submissions to the Native Title Act 1993 (Cth); and the following Queensland statutes: the Limitation of Actions Act 1974; the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984; and the Human Rights Act 2019. There was also reference to the ‘Reconciliation Action Plan 2003’ (source unknown); the Land Court’s Procedural Assistance Service; Sovereign Rights; and Traditional Law and Customs.
- [10]Understanding rights and interests in land in Aboriginal communities such as Yarrabah is challenging for a number of reasons. From pre-colonial times, the mission period, to state control, and community administration, land management and use regimes evolved. The former missions transitioned from state managed reserve land to Deed of Grant in Trust (DOGIT) lands under the Land Act 1994 which are held by Aboriginal Councils. The DOGITs were ‘transferable land’ under the Aboriginal Land Act 1991. Some Aboriginal DOGIT lands have been transferred. The Native Title Act 1993 (Cth) brought with it the recognition of native title rights and interests, and for a regime for land dealings on native title land. Various home ownership schemes were legislated including the Aboriginal and Torres Strait Islander (Land Holding) Act 1985, later repealed and replaced by the Aboriginal and Torres Strait Islander (Land Holding Act) 2013; and for commercial and home ownership leases under the Aboriginal Land Act 1991. Cultural heritage legislation both State and Commonwealth, and countless other legislative and policy initiatives affecting the lives of Aboriginal people living in these communities were introduced. All of this, and more, comes into play when making decisions about land use. It is an understatement to say that land use decisions in Aboriginal communities is complex. The history of these communities engenders an understandably protective attitude towards land security amongst residents. I am not critical of the submissions of Ms Noble, in fact the legislation listed in her submissions only scratch the surface. Her argument concerning the relevance of many of the Acts listed is not particularised, however, as her submissions acknowledge, the jurisdiction of the Land Court has limitations. Her submissions continue: “… it is important to explore alternative avenues or legal mechanisms that could address the issue of compensation and relief in this case”, and that “Clarification of the scope of jurisdiction could provide valuable insights into potential solutions”. Fundamentally, the submissions are about a fractured relationship between Ms Noble and her family, and the YASC. Litigation can rarely, if ever, mend a fractured relationship.
- [11]I will quickly comment on the various other matters raised by Ms Noble in the material. My conclusion is that none of them enable me to deliver the outcome she seeks.
Further issues raised in submissions
- [12]Under the Native Title Act 1993 (Cth), the Federal Court has exclusive jurisdiction in relation to native title determination applications and compensation applications.
- [13]Issues of sovereignty and sovereign rights raise constitutional issues – the bailiwick of higher courts.
- [14]Reconciliation Action Plans are just that, plans for organisations to take meaningful action to advance reconciliation. They are a statement of commitment, rather than a contract enforceable at law.
- [15]The objects of the Human Rights Act 2019 (HRA) are to protect and promote human rights including property rights and cultural rights and concerns the actions and decisions of public entities. The HRA requires public entities to act in a way that is compatible with human rights and to properly consider human rights when making decisions. The forum in which to raise a human rights complaint is directly with the public entity and, following a complaint, with the Queensland Human Rights Commission.
- [16]Finally, offences against the ACHA (for example, the destruction of Aboriginal cultural heritage) can be reported to the Queensland Police Service and prosecuted in the Magistrates Court.
Adverse possession
- [17]Adverse possession is a doctrine of land law whereby a person either occupying or in possession of land legally owned by another may acquire ownership and title to the occupied land.
- [18]For a claim for adverse possession to succeed there are a number of common law requirements that need to be met:
- actual possession, such that the legal owner has a cause of action for trespass. The occupier must act as though they own the property and use the land;
- continuous and uninterrupted occupation and use of the land; and
- time; this represents the time period for actual, continuous, exclusive and open possession by the occupier, and the time period by which the legal owner can legally dispossess the trespasser.
- [19]A claim for adverse possession in Queensland is through an application for registration ‘as proprietor by adverse possession’ under the Land Title Act 1994. If the Registrar refuses the application, a judicial review application is brought in the Supreme Court.
- [20]Importantly, the Land Title Act 1994 is about the registration of freehold land and interests in freehold land.
Is there power under the Land Act 1994 to recognise adverse possession?
- [21]Aboriginal DOGIT land is State land granted ‘in fee simple in trust’ by the Governor-in-Council under the Land Act 1962 (repealed and replaced by the Land Act 1994). Aboriginal DOGIT land is granted for the benefit of Aboriginal inhabitants or for Aboriginal purposes. The Minister administering the Land Act 1994 appoints a trustee as manager and administrator responsible for DOGIT land. Trustees are empowered under the Land Act 1994 to make decisions and undertake actions related to land management and use. Trustees are also empowered to decide on the grant of leases. The Minister is responsible for ensuring that Aboriginal DOGIT land is properly and effectively managed by trustees in accordance with the Land Act 1994. This includes ensuring that decisions made by the trustees do not diminish the benefit of the land to Aboriginal inhabitants or for Aboriginal purposes. For example, a trustee could diminish Aboriginal benefit by granting inappropriate leases, or granting leases with inappropriate conditions.
- [22]When leasing, trustees have no power to bind the State and have no authority to recognise native title or to recognise a group as the traditional owner of the land.
- [23]The decision of Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48 although a decision refusing summary judgement raises a question of the ability to claim adverse possession of a pastoral lease issued in 1956 under the Land Act 1962 (Qld). Division 5 of Part 6 of the Land Title Act 1994 (Qld) which guarantees registered freehold title expressly deals with the right of adverse possession however, there is no such provision in the Land Act 1994. There is no mention of adverse possession in any version of the Queensland Land Acts and only s 6(4) of the Limitation of Actions Act 1974 makes it clear that “the right, title or interest of the Crown” in or to any land is not affected by any adverse possessor. It is against the background that the Court considered the right of an adverse possessor to a Crown lease.
The cultural heritage jurisdiction of the Land Court
- [24]The jurisdiction relevant to this matter is found in s 32G of the Land Court Act. Pursuant to s 32H, the Court can restrain a party from doing a “relevant act”.
- [25]Section 32H defines a relevant act as follows:
- (4)… relevant act means an act that is a contravention of –
- (a)an Aboriginal cultural heritage protection provision; or
- (b)…; or
- (c)a provision of another Act providing for the protection or preservation or access to, items, places, areas of cultural significance to Aboriginal people or Torres Strait Islanders.
- [26]The Aboriginal cultural heritage protection provisions are sections 24(1), 25(1), and 26(1) of the Aboriginal Cultural Heritage Act 2003 (ACHA). They provide it is an offence to harm,[1] excavate, relocate or take away,[2] or possess,[3] Aboriginal cultural heritage – unless any of those acts are done under a native title agreement. They are offence provisions – which means a person can be prosecuted for a breach of those provisions. A prosecution would be brought in the Magistrates Court. The Land Court does not have power to hear and determine a prosecution under the ACHA.
- [27]The information provided by Ms Noble appears to show that the two sites referred to have already be the subject of some earthworks on Lot 161 which may have damaged or destroyed the things that made the site of particular significance to Ms Noble and her family.
- [28]The s 32H jurisdiction of the Land Court to grant an injunction is specifically to “stop” the “doing of the act” if the Court is satisfied the person against whom the injunction is sought “is doing the act” …, if the “act” is a relevant act (eg. harm to Aboriginal cultural heritage), if the applicant (in this case Ms Noble) has standing, and if “it is necessary to grant the injunction to stop the person doing the act”.
- [29]Relevant to this application is the claim that Ms Noble’s family have a ‘cultural and sacred connection’ to the land arising from ‘traditional birth practice’ in relation to Ms Noble’s first grandchild and a family pet – both sites having been desecrated by the Yarrabah Aboriginal Shire Council. Ms Noble says the Yarrabah Aboriginal Shire Council has breached the Cultural Heritage duty of care.
- [30]There are two issues here. If the harm has already been caused – then the time for granting an injunction has passed. The harm cannot be stopped once it has occurred. An alleged breach of the duty of care (s 23 ACHA) is a matter for consideration of prosecution in the Magistrates Court and there are penalties that apply if the breach is established. It is however not something the Land Court can decide. It does not and cannot restore the damage alleged to have been done. It does not enable an order for compensation to be made to an affected party. It does not establish a right to possession of the land where the breach occurred.
Conclusions
- [31]Section 5 of the Land Court Act provides that this Court has the jurisdiction given to it under various Acts. The Land Court has jurisdiction for particular cultural heritage matters pursuant to s 32H of the Land Court Act. The Land Court also holds some jurisdiction under the Aboriginal and Torres Strait Islander Land Holding Act 2013 in relation unresolved applications under the Aboriginal and Torres Strait Islander Land Holding Act 1985 – which does not appear to have relevance to this application. In exercising its jurisdiction, the Land Court has all the powers of the Supreme Court in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding.[4] The Land Court Rules 2022 (Land Court Rules) state that in the absence of a Land Court rule, direction or order, the Uniform Civil Procedure Rules 1999 (UCPR) apply with necessary changes.[5] Where the UCPR applies, an originating application under the Land Court Rules is to be treated as if it were a claim under the UCPR.[6]
- [32]Rule 16 of the UCPR allows the Court to declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started. The Land Court Rules are designed to ensure that when the court performs a function under the Act, the court facilitates the just and quick resolution of the issues in a proceeding, and avoids undue delay, expense and technicality in a proceeding.
- [33]In my view this court does not have the power to hear or decide the applicant’s claim for adverse possession. Further, this court cannot grant an injunction pursuant to s 32H of the Land Court Act in circumstances where the harm alleged is not continuing and the behaviour complained of is, if established, a matter for consideration by the prosecuting authority in a court with jurisdiction to consider such matters.
Order
I declare that the proceeding LCA163-24 has not, for want of jurisdiction, been properly started. The proceeding is dismissed.