Torres Strait Island Regional Council v Ahwang

The appellant’s decision as trustee of the St Pauls Deed of Grant in Trust to grant a 99 year lease of residential land at St Pauls, Moa Island had been found wanting at first instance, with the primary judge concluding that there had been a lack of compliance with s 135(2)(b) Torres Strait Islander Act 1991. On appeal the appellant contended that the primary judge had erred in interpreting s 135(1), on the ground that, interpreted literally, 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. The Court held that no error had been made by the primary judge in applying the ordinary meaning interpretation of s 135(1) of the Act.

Mullins JA and Boddice and Crow JJ

22 March 2022

The grounds of appeal were twofold:

1. That 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. That the primary judge erred in concluding that the appellant’s decision-making process by which it determined to grant the lease of the subject property had to comply with s 135 of the Act.

Relevant legislation

Part 9 of the Act deals with the “Decision-making process”. Section 135 relevantly provides:

(1) This section applies if this Act provides that the trustee of Torres Strait Islander land is required to make a decision about the land, including, for example, a decision about any of the following—

(a) the way in which the trustee will consult about the making of a freehold instrument for the land;

(b) whether to grant an interest in the land;

(c) whether to consent to the creation of a mining interest in the land;

(d) whether to enter into an agreement about the land.

(2) The trustee must—

(a) have regard to—

(i) if the Torres Strait Islanders for whom the trustee holds the land have agreed on a decision-making process for decisions of that kind—the process; or

(ii) if subparagraph (i) does not apply—any Island custom, for decisions of that kind, of the Torres Strait Islanders for whom the trustee holds the land; or

(b) if there is no decision-making process mentioned in paragraph (a)(i) or relevant Island custom—make the decision under a process of decision-making agreed to and adopted by the trustee for the decision or for decisions of that kind.

The appellant’s submissions

Essentially, the appellant sought to argue that given s 85 empowers the grant of a relevant lease, its 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, because in this instance the Council (as trustee) was not bound to make a decision regarding Torres Strait Islander land. Citing s 32CA(1) Acts Interpretation Act 1954, the appellant submitted 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. It follows that it does not apply to the exercise of the power which s 85(1) grants in permissive terms. [29], [30].

To illustrate this proposition the appellant compared the operation of s 85(1) with s 28I(1) of the Act, which obliges the trustee to determine the mode by which it will consult about the making of a freehold instrument in relation to freehold option land. [31]. It also re-agitated submissions which it had unsuccessfully made at first instance, to the effect that the extrinsic material relevant to the 2011 Act and the 2014 Act supported its literal interpretation of s 135(1), specifically by the way the explanation for the insertion of part 5 “Decision-making process” in the Explanatory Notes for the 2011 Bill was worded. It also suggested that certain amendments made by the 2014 Act.lent support to its position. [32].

In the court’s view, the appellant’s reliance on the extrinsic material was “misplaced”. [35].

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

In the Court’s assessment, no error had been made at first instance by the primary judge in applying the ordinary meaning interpretation of s 135(1) of the Act. It clarified that:

“The purpose of s135 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).” [38].

The Court did not accept that the appellant’s distinction between s 85(1) and the mandatory consultation required of the trustee under s 28I(1) of the Act supported its proposition, noting that whilst it was indeed the case that s 28I requires the trustee to determine the means by which it will consult about the making of the freehold instrument, there is still discretion conferred on the trustee in deciding upon the method of consultation. In the court’s view the appellant’s reliance on the mandatory consultation requirement under s 28I(1) also overlooked the discretionary nature of the decisions in paragraphs (b) to (d) of s 135(1). Lastly the court observed that s 135(1) specifically contemplates by its terms that the matters listed in paragraphs (a) to (d) are merely examples, meaning that scope exists for s 135(1) to apply to other provisions in the Act. [37].

The court stressed the permissive nature of the power of the trustee to grant a lease under s 85(1) of the Act, including whether to grant the lease and its term, together with the grant of a home ownership lease proceeded under s 85(2). [36]. It also noted the discretionary nature of the decision to be made under s135(1) by a trustee. [37].

Disposition 

In the result, the appeal was dismissed. [39].

A Jarro