Henry J
This case concerned an application for judicial review of a grant of land by the Torres Strait Regional Council (the Council) on a 99 year lease to Anthony Pilot. The land in question was on Moa Island.
Background
The relevant piece of land, known as St Pauls, was held by the Council under a Deed of Grant in Trust that required the Council to ‘hold the land in trust for the benefit of Islander inhabitants’. Until 2017, the house had been occupied by the applicant’s aunt, Mrs Mary Pilot. After that point, the applicant, Mr Ahwang, occupied the property. Both Mr Ahwang and the son of Mrs Pilot, Anthony Pilot, expressed interest to the Council in leasing the property. In August 2019, Mr Ahwang was notified of the Council’s decision to grant the lease of the property to Anthony Pilot. Mr Ahwang sought review of this decision.
Jurisdiction
The Court was satisfied that the Judicial Review Act 1991 (Qld) applied to the decision as it was made under the Torres Strait Islander Land Act 1991 (Qld) (TSILA).
Submission on construction
The question was whether the Council was obliged to comply with s 135 of the TSILA. That section requires that where a trustee of Torres Strait Islander land is required to make a decision about that land, they must, among other things, comply with a decision making process under Island custom if one exists. The Council submitted that it was not obliged to comply with s 135 because it was not required to make a decision about the land. Mr Ahwang submitted this interpretation would render s 135 meaningless.
Decision on construction
The Court interpreted the words as holding only their ordinary meaning describing a circumstance where a particular decision maker, rather than another, is obliged to make a decision.
The decision-making process
The next question was whether the Council heeded the customary decision-making process. The decision-making process was a mediation between the two interested lessees, followed by a community meeting, followed by a Council decision. Mr Ahwang submitted that, firstly, the Council made no enquiry as to whether the Torres Strait Islanders for whom the land was held in trust had agreed to a decision-making process for the decision or whether an Island custom existed for such decisions, and secondly, he submitted that the decision-making process was not a decision-making process within the scope of s 135(2)(b). The Court rejected the first complaint for a lack of evidence of an agreement or custom. On his second complaint that the decision-making process was not as contemplated in s 135(2)(b), Mr Ahwang submitted that the process was co-opted by the popular opinion at the community meeting and the Council was obliged to consider the matter on its merits. The Court accepted that the decision had to be made on the merits and found that the Council had in fact only made the decision based on submissions regarding popular support. This represented an error of law. Therefore, the Council’s decision was void. The Court also made a comment about what would be required for compliance with the Council’s own policies when remaking the decision. The decision was set aside subject to conditions and remitted to the Council for reconsideration.