Cook Shire Council re land claim – ten islands near Cape Grenville [1994] QLT 6

[1994] QLT 6 LAND CLAIM TO TEN ISLANDS NEAR CAPE GRENVILLE, NORTH QUEENSLAND Decision of the Land Tribunal concerning the application by Cook Shire Council to be made a party to the proceeding Application and decision 1. In a letter dated 8 March 1994, the Shire Clerk of Cook Shire Council applied to the Land Tribunal (the "Tribunal") for the Cook Shire Council (the "Council") to be made a party to the proceeding for the hearing of the claim made by certain Aborigines to ten islands situate at Round Point, Cockburn Reef, Indian Bay and Margaret Bay (namely Rodney Island, Manley Island, Pig Island, Bootie Island, Sunday Island, Ethel Islet and four unnamed islands) all in the vicinity of Cape Grenville, north Queensland, (the "land claim to ten islands near Cape Grenville, north Queensland"). 2. The Tribunal has decided that the Council is an interested person in relation to the land claim. Consequently, the Tribunal has made an order making the Council a party to the proceeding. 3. The reasons for the Tribunal's decision are set out below. Deciding whether a person should be made a party to a proceeding - the approach 4. The Tribunal has considered previously applications by the Council to be a party to land claim proceedings in respect of 14 areas of land claimed under the Aboriginal Land Act 1991 (the "Act") .1 In most cases, detailed written reasons for the decision were given by the Tribunal. It is not necessary in the present case to restate the analysis given previously of the relevant provisions of the Act. It is sufficient to note that, for the application to succeed, the Council must be "a person whose interests (whether pecuniary or otherwise) could be affected by the grant of land as Aboriginal land because of" the land claim to the ten islands near Cape Grenville, north Queensland. 2 See decisions on the applications by the Coc',,cil to be a Aboriginal c,aims to land nec:1;- "uruk,.m {AB92<;0 - c,ccision dat.:;G, 2L: 1:,ugust 1992), ,v,s1vilie Nationdi ,~a, 1, ,AB92-002 - decision ,:'a,:ed 24 Augu"' 92), various near Mei,iill,2 i'ladonal Park (/\892-003 - AB92- 009, AB92-013 - decision dated 17 February i 993), former Peppan reserve {AB92-10 - decision dated 20 August 1993), Lakefield National Park (AB93-001 - decision dated '13 August ·1 993), and Cliff Islands National Park (AB93-002 - decision dated 20 August 1993), available Crown land near Helenvale, North Queensland (AB 93-003 - decision dated 8 March 1994)_ Aboriginal Land Act 1991 section 1 .03. -- 1 of 5 -- - 2 - 5. The Council's application was made in writing within the period specified in the notice published by the Tribunal under section 4.07 of the Act in relation to the claim. The Council is a "person" for the purposes of the Act. 3 The question is whether the Council has "interests" that "could be affected" by the grant of the land. Interests 6. The definition of "interested person" in section 1.03 of the Act makes it clear that the interests can be "pecuniary or otherwise". In the letter dated 8 March 1994 the Shire Clerk wrote in very general terms: "Council wishes to be made a party to the proceedings, as it is of the opinion that it has a financial interest in any land dealings in the area it administers." 7. It is clear from the references to "a claim under this Act" and "the claim" or "that claim" in sections 8.17 and 8.18 of the Act and in the definition of "interested person" in section 1.03 of the Act, that such a general assertion is insufficient to establish the Council's interests in a particular land claim proceeding. Indeed, it may be doubted whether an assertion in those terms is sufficient to establish that the Council has an "interest" of the type contemplated by section 1 .03 of the Act. 8. The Council was asked to provide details of its interests as they relate specifically to this land claim and how those interests could be affected if the claim is successful. In a letter dated 19 April 1994 the Chief Executive Officer of the Cook Shire Council wrote: II Council believes that in the event of the claim being successful it could follow that the land become rateable pursuant to Section 553 of the Local Government Act 1993. The land is presently vacant crown land and as such exempt from rates. Council may become responsible for the provision of services of a Local Government nature and may also be required to exercise a regulatory role in the use of the land and improvements thereon subject to Section 2.20 of the Aboriginal Land Act 1991." 9. Both points allude to pecuniary interests which the Council as the relevant local government may have in respect of the land. The remaining question is whether the Council's pecuniary interests "could be affected" by the grant of the land as Aboriginal land because of the c!aim. 3 See Local Government Act 1936 section 6(1 )(ii) and Local Government Act 1993 section 35; Acts Interpretation Act 1954 section 36 definition of "person". -- 2 of 5 -- - 3 - Could be affected 10. As noted in decisions on previous applications by the Council, the ordinary meaning of the word "affected" is broad and as used in the context of the Act it should be read broadly. In some instances, the grant of land might result in detriment to a person's interests. In other instances, a person's interests may be enhanced, strengthened or affected in some other way by the grant of the land. In each case it could be said that the person's interests could be "affected". 11. Finally, to meet the criteria of an "interested person" it must be apparent that the interests "could" be affected, in the sense that the interests are capable of being affected by the grant of the land as Aboriginal land and there is some possibility (though not necessarily a high probability or certainty) of the grant having an effect on those interests. 12. In some cases an element of speculation may be involved. It may not be possible to predict with any certainty in advance of, say, hearing the claimants' evidence, whether or how the person's interests could be affected. The important thing to establish is that there is some prospect, but not an unduly remote one, that the person's interests would be affected by the grant of the land. 13. The relevant provisions in section 553 of the Local Government Act 1993 (which commenced on 26 March 1994) are as follows: "(1) All land is rateable land other than - (a) vacant State land; and (d) Aboriginal land under the Aboriginal Land Act 1991 ... , other than land used for commercial or residential purposes; and (e) land exempt from rating under an Act or a regulation made under this Act. (2) A regulation under subsection (1 )(e) may, for example, exempt from rating land used for religious, charitable, educational or public purposes. (3) If part of a parcel of land mentioned in subsection ( 1) (d) is used commercial or residential purposes and another part (the "remainder") the parcel is used for other purposes, the remainder is not rateable land, even though the other part of the parcel is rateable land," -- 3 of 5 -- 14. 15. 16. 4 - 4 - Those provisions indicate that if the land which is currently vacant State (or Crown) land 4 becomes Aboriginal land it will not be rateable, in whole or in part, unless all or part of the land is used for commercial or residential purposes. The expression "residential purposes" is not defined in the Local Government Act 1936, nor in the Valuation of Land Act 1944 or the Land Act 1962. Some guidance as to what was intended may be found in section 2.12(4) (a) of the Aboriginal Land Act 1991, which empowers the Governor in Council to declare that an area of transferred land is not claimable land where the Governor in Council is satisfied that the land is "primarily used or occupied by Aboriginal people for residential or community purposes". That provision was inserted by the Aboriginal and Torres Strait Islander Land (Consequential Amendments) Act 1991. The Minister's second reading speech and the committee debates on the amendment do not give a clear indication of what was the intended scope. of the term "residential" in that context. It appears, however, that the expression land used or occupied for "residential or community purposes" was intended to apply to closely settled areas where permanent residences are constructed. So, for example, the Minister for Family Services and Aboriginal and Islander Affairs said with respect to section 2. 12(4), "It is likely that this mechanism will be particularly appropriate in township areas" . 5 On the information available to me at present, however, it is not possible to say whether the application of section 2.12(4) would be so limited, or whether that limited application is what is intended for section 553 of the Local Government Act 1993. If land which is not rateable now is not rateable when it becomes Aboriginal land then the Council has no pecuniary interest in the land which could be improved by the grant. If, however, the claimants are successful and use part or all of the land for "residential purposes" then it may become rateable, unless it is exempted under section 553(1 )(e). The land claim application does not establish whether the claimants would use the land for residential purposes. The application states only that the land is part of the traditional estate of the Wuthathi people and that those people would assume responsibility to "look after and utilise the land and surrounding seas in accordance with contemporary Wuthathi tradition". Section 4 of the Local Government Act 1993 defines "State land" as having the meaning given by section 5(1) of the Land Act 1962, namely "Crown land". Legislative Assembly, Debates, 23 October 1991, at 1975 and 2986; see also the statement by Opposition spokesman, Mr Slack, at 2973 and 2989. -- 4 of 5 -- ------------------------------ --------- ----------- - - 5 - 17. It is not possible to predict with any certainty in advance of rece1v1ng documentation, or hearing evidence, from the claimants whether they would reside on the land or whether such residence would constitute use for a "residential purpose" as that expression is used in the Local Government Act 1993. Accepting that there is some prospect that the claimants may wish to reside on all or part of the land and that it is arguable that their use of the land would constitute a use for "residential purposes", there is some possibility that the Council's pecuniary interests could be affected in the sense that there may be some revenue potential for the Council in the land. 18. On the basis that some of the land may become rateable, it is not necessary to consider whether the second point made by the Shire Clerk would enable the Council to meet the criteria of an "interested person" with respect to the land claim proceeding. It may be relevant to note, however, that each of the areas claimed is an island without a dedicated right of access across land or a bridge. Hence the Council may have little, if ,any, liability to provide services of a local government nature to the land if it becomes Aboriginal land. Order 18. Pursuant to section 8.17(2) of the Aboriginal Land Act 1991, the Land Tribunal orders that the Cook Shire Council be made a party to the proceeding for the land claim to ten islands near Cape Grenville, North Queensland. Graeme Neate Chairperson Land Tribunal 16 May 1994 -- 5 of 5 --