The case of Torres Strait Island Regional Council v Ahwang  QCA 39 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) against the decision of the Supreme Court of Queensland (Supreme Court) in the case of Ahwang v Torres Strait Island Regional Council  26 QLR;  QSC 147 (Ahwang No. 1), which relevantly held that the decision of the Torres Strait Island Regional Council (Council) under section 85 of the Torres Strait Islander Land Act 1991 (Qld) (TSI Land Act) to grant a 99-year lease of residential land at St Pauls, Moa Island was not subject to a "process of decision-making" under section 135(2) of TSI Land Act.
The Council relevantly submitted that section 135 of the TSI Land Act was not applicable to a decision of the Council made under section 85 of the TSI Land Act to grant a lease.
The Supreme Court's decision in the judicial review proceedings was summarised in our August 2021 article.
The Court of Appeal upheld the Supreme Court's decision that section 135 of the TSI Land Act required the Council, as a trustee, to make the decision having regard to the matters set out in section 135(2) of the TSI Land Act.
Section 85 (Grant of lease by trustee of Torres Strait Islander land) of the TSI Land Act relevantly states as follows:
"(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) 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—
(a) a Torres Strait Islander;
(b) a person who is not a Torres Strait Islander if—
(i) the person is the spouse or former spouse of—
(A) a person mentioned in paragraph (a); or
(B) a person mentioned in paragraph (a) who is deceased; or
(ii) the lease supports another part 8 lease granted to the person..."
Section 135 (Decision-making by trustee) of the TSI Land Act states as follows:
"(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."
Supreme Court's decision in respect of the application of section 135 of the TSI Land Act
The Supreme Court disagreed with the Council's submission that the term "required" in section 135(1) of the TSI Land Act related to the positive obligation to make a decision.
The Supreme Court held that it was "plainly open on the ordinary meaning of the section's language…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…" (at  of Ahwang No.1); "[t]hus, the section applies when a decision which falls to be made about land is a decision which it is for the trustee to make." (at  of Ahwang No. 1).
The Supreme Court held that the requirements of section 135 of the TSI Land Act are not particularly onerous, and stated "[all] it requires is that regard be had to the Islanders' agreed procedure or custom for the decision and in the absence of either, that there be compliance with a process of decision making agreed to and adopted by the trustee." (at  of Ahwang No. 1).
Court of Appeal agreed section 135 of the TSI Land Act applied to a decision under section 85 of the TSI Land Act
The Court of Appeal considered the context of the provisions of the TSI Land Act (see  to ), including amendments made to the TSI Land Act since the Council's decision in 2019 to grant the 99-year lease, the history of the TSI Land Act (see  to ), and the Council's misplaced reliance on Explanatory Notes (see  to ).
The Court of Appeal held that a decision of a trustee to grant a 99-year lease was discretionary, whereas "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)." (see  to ).
The Court of Appeal observed that section 135 of the TSI Land Act ensures that a decision by a trustee of Torres Strait Islander land makes a decision about the land in compliance with the process agreed by the Torres Strait Islanders for whom the land is held on trust or by reference to Island custom where there is no agreed decision-making process (at ).
The Court of Appeal held that the Supreme Court's interpretation of section 135 of the TSI Land Act was in accordance with the section's ordinary meaning and purpose. Therefore, there was no error in the judgment that warranted allowing the appeal.
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