Land and Environment Court of New South Wales CITATION : Anderson v Jali Local Aboriginal Land Council [2009] NSWLEC 162 APPLICANT: Susan Anderson PARTIES : RESPONDENT: Jali Local Aboriginal Land Council FILE NUMBER(S) : 40051 of 2009 CORAM: Biscoe J KEY ISSUES: ABORIGINAL :- claims arising from residential tenancy dispute between Aboriginal person and Local Aboriginal Land Council - whether within jurisdiction of Land and Environment Court - disputes as to right, obligation or duty under Aboriginal Land Rights Act 1983, ownership of cottage, validity of residential tenancy agreement and validity of notice of termination of agreement Aboriginal Land Rights Act 1983, ss 36(9), 40, 40AA(1), 46(9), 52B LEGISLATION CITED: Land and Environment Court Act 1979, ss 16, 20(2), 20(3), Native Title Act 1993 (Cth), ss 4, 81, 223 Residential Tenancies Act 1987, s 3 DATES OF HEARING: 15 - 16 September 2009 DATE OF JUDGMENT: 18 September 2009 APPLICANT: Mr A. Oshlack (agent) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr M. Wright (barrister) SOLICITORS Baker, Mannering & Hart JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 18 September 2009 40051 of 2009 SUSAN ANDERSON v JALI LOCAL ABORIGINAL LAND COUNCIL JUDGMENT 1 HIS HONOUR: This proceeding concerns a residential tenancy dispute over a cottage between the tenant Susan Anderson, who is an Aboriginal person, and the lessor, Jali Local Aboriginal Land Council (Jali). 2 The applicant claims: (a) a declaration (as amended orally during the hearing) that Jali never acquired the cottage for residential accommodation for Aboriginal persons in its area pursuant to s 52B of the Aboriginal Land Rights Act 1983; (b) declarations that the residential tenancy agreement between Jali and herself is void, that Jali's notice of termination of the agreement is void, and that she has been the owner and occupier of the cottage since it was constructed in about 1990; (c) a consequential injunction; and (d) an order that Jali "restitute" to her all rent she has paid (subtracting any maintenance costs or water rates). Background 3 The applicant has been a member of Jali since its inception in 1983. 4 Since 1984, Jali has been the registered proprietor of all the parcels of land known collectively as Cabbage Tree Island in the Richmond River near Wardell in northern New South Wales. One of the parcels is Lot 261 in Deposited Plan 755691. Lot 261 covers the southern end of the island. 5 On Lot 261 are a number of cottages which Jali leases to Aboriginal persons. Cottage 24 was constructed in about 1990. The applicant has occupied cottage 24 since it was constructed. Until 2005, her occupation was not evidenced by any written lease. She paid Jali a weekly rental, but by November 2004 was over $10,000 in arrears. 6 In June 2005, Jali told her they would write off the arrears on the basis that she pay rent in the future under a new written lease, which she agreed to sign. On 23 August 2005 she and Jali signed a residential tenancy agreement in relation to cottage 24 for a term of three months at a fortnightly rental with a holding over provision on the same terms. 7 However, she still did not pay rent. As at March 2007, her rental arrears under the tenancy agreement exceeded $3,000. Jali caused proceedings to be commenced against her in the Consumer, Trader and Tenancy Tribunal (CTTT). On 5 April 2007, the CTTT made orders for the termination of her tenancy and for possession of cottage 24 and for the payment of rent arrears. Her application to the CTTT for a rehearing was not granted. On 26 April 2007, the CTTT issued a warrant for enforcement of the order for possession. The warrant was not enforced because the parties decided to try to resolve the non-payment of rent issue by negotiation. 8 On 20 June 2007, the Executive of Jali resolved that an employee, Mr Gavin Brown, arrange a meeting with the applicant and that he and two other persons, including the Jali secretary Ms Lenkunyar Roberts, meet with the applicant and propose the following options in this order: "1. S Anderson agrees to a payment plan to repay the rental arrears debt of $3,700. Rent will be set at $130 per week on a 1 month lease agreement with up front payment of 2 weeks bond. S Anderson to declare all persons who are residing in the cottage. If this is not agreed to then propose option 2; 2. Jali LALC enters into a lease agreement with a relative of S Anderson. Rent will be set at $130 per week on a 1 month lease agreement with up front payment of 2 weeks bond. All persons who are expected to reside in the cottage will be declared in the lease agreement. Jali LALC will engage a debt collector to recover monies owed by S Anderson. 3. If neither the above 2 options are agreed to by S Anderson to then inform S Anderson that Jali will lodge the warrant granted to the Sheriff's Office and proceed with eviction." 9 Mr Brown and Ms Roberts testified that shortly afterwards they met with the applicant, put the three options to her, she rejected them and no agreement was reached. She denied in evidence that any such meeting was held. Notwithstanding that there is no written report or record of the meeting, having listened to each of these persons give evidence, I formed the impression that Mr Brown and Ms Roberts were reliable witnesses and that I should accept their evidence. 10 The applicant remained in possession of the cottage and continued not to pay rent. 11 On 26 February 2008, the Jali Board met and resolved that Century 21 (an agent) commence the procedure to evict the applicant and that she be taken to the Supreme Court. 12 In December 2008, a notice of termination of the residential tenancy agreement signed by Jali's agent and dated 5 December 2008 was served on the applicant. 13 In the meantime, on 26 November 2008, the applicant and her brother filed in the Federal Court of Australia a native title determination application under the Native Title Act 1993 (Cth). The application claims native title rights and interests, including ownership and possession, over a large area of land that includes Cabbage Tree Island. The application has not yet been determined. The Federal Court has exclusive jurisdiction to determine any question concerning the existence of native title: s 81 Native Title Act. The application and supporting affidavits are in evidence before me. The applicant's case 14 The applicant's case is that: (a) Jali never acquired cottage 24 for the provision of residential accommodation for aboriginal persons pursuant to s 52B(1) of the Aboriginal Land Rights Act ; (b) she and not Jali has owned cottage 24 since its construction; (c) the residential tenancy agreement is void for two reasons: (i) she and not Jali has owned cottage 24 since its construction, and (ii) under ss 40 and 40AA(1) read with s 36(9) of the Aboriginal Land Rights Act 1983 (iii) she entered into the tenancy agreement under duress. (d) the notice of termination is void for two reasons: (i) the tenancy agreement is void, and (ii) she was denied procedural fairness in not being given notice of the 2007 and 2008 Jali Executive and Board meetings; (e) consequential on the above, Jali should be ordered to make restitution by repaying her all the rent she has paid (subtracting any maintenance costs or water rates). Jurisdiction 15 Jalii submits that the Land and Environment Court has no jurisdiction over the claims. The applicant submits that she seeks declarations in relation to rights, obligations or duties under the Aboriginal Land Rights Act and, therefore, that the Court has jurisdiction under ss 20(2)(a) and (c), 20(3)(a) and 16(1) and (1A) of the Land and Environment Court Act 1979, which provide: " 20 Class 4—environmental planning and protection and development contract civil enforcement (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, … (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and (3) For the purposes of subsection (2), a planning or environmental law is: (a) any of the following Acts or provisions: Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7), 16 Jurisdiction of the Court generally (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act." 16 The applicant's summons seeks to anchor the proceedings jurisdictionally to the Aboriginal Land Rights Act by claiming, in prayer 1 as corrected orally during the hearing, that Jali never acquired cottage 24 for the provision of residential accommodation for Aboriginal persons pursuant to s 52B(1), which provides: " 52B Social housing schemes (1) This section applies to a community benefits scheme in relation to the acquisition and provision by or on behalf of a Local Aboriginal Land Council of residential accommodation for Aboriginal persons in its area and to the construction, upgrading and extension of any such accommodation (a social housing scheme)." 17 In my opinion, no issue arises under s 52B(1) because Jali acquired Lot 261 in 1984 but s 52B(1) was not enacted until 2006. 18 The applicant made a further attempt to attract the jurisdiction of the Court by submitting that the tenancy agreement, and therefore the notice of termination, was void under ss 40 and 40AA(1) read with s 36(9), which provide as follows: " 36 Claims to Crown lands (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. 40 Disposal of land restricted (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it, except in accordance with this Division. (2) Any sale, exchange, lease, disposal or mortgage of, or other dealing with, land in contravention of this Division is void. 40AA Disposal of land subject to native title restricted (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act)." 19 The expression "native title rights and interests" has the same meaning as in the Commonwealth Native Title Act: s 4 Aboriginal Land Rights Act. Section 223 of the Native Title Act 1993 (Cth) provides: " Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. Statutory rights and interests (3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests ." 20 The applicant submitted that: (a) Lot 261 was transferred to Jali under s 36; (b) therefore, Jali's ownership of Lot 261 is subject to "any native title rights and interests" existing in relation to Lot 261 immediately before the transfer; (c) prima facie, there are and at all relevant times were native title rights and interests in Lot 261 and cottage 24 as evidenced by the native title determination application filed by her brother and her in the Federal Court in November 2008 and the supporting affidavits; (d) as the application has not yet been determined, s 40AA(1) mandates that Jali not lease cottage 24 on Lot 261 and, by s 40(2), the lease is void. 21 There is a short answer to the submission. The critical provision is s 40AA(1). It only applies (relevantly) to land vested in Jali under s 36(9). The evidence establishes that the relevant land, Lot 261, was vested in Jali not under s 36(9) but under s 35 (since repealed). Consequently, s 40AA is irrelevant. By the end of closing addresses, this seemed to be accepted by the applicant. 22 At this point of the analysis, it is difficult to see how the applicant's remaining contentions can come within the jurisdiction of the Land and Environment Court. Cottage 24 comes within the definition of "residential premises" in s 3 of the Residential Tenancies Act 1987 (NSW). That Act is not a planning or environmental law within the meaning of s 20(3) of the Land and Environment Court Act 1979. Lest I am in error as to jurisdiction, I will address the remaining contentions, which I reject for the following reasons. Ownership 23 Jali is the registered proprietor of Lot 261 on which cottage 24 is located. The applicant is challenging Jali's indefeasible title to cottage 24. The applicant submits that she and not Jali owns the cottage for the following reasons, which I do not accept: (a) Jali did not acquire or construct it as required by s 52B of the Aboriginal Land Rights Act 1983. I have earlier rejected this argument when discussing jurisdiction; (b) the cottage was granted to her under a Commonwealth housing scheme through the Aboriginal and Torres Strait Islander Commission. The applicant relies on the following evidence: (i) the fact that when the cottage was constructed, the builder handed her the keys. In my view, that is flimsy evidence. (ii) a Jali business record relating to the pre 2005 period contains a notation that the cottage was funded by "Mainstream DOH/OCH", whereas the same record shows that another cottage was funded by "Other NSW Govt Aboriginal Program". The applicant invites the inference, which I draw, that "DOH" means the NSW Department of Housing. The applicant also invites the inference that "OCH" refers to the Office of Commonwealth Housing. There is no evidence that there was an Office of Commonwealth Housing, "OCH" might refer to the Office of Community Housing within Housing NSW, and I think it would be unsafe to draw the inference that the applicant invites. Even if I were to draw the inference, I do not think that such a joint source of funding significantly advances the applicant's case that the cottage was granted to her; (c) despite requests, Jali has not produced a record of title that it owns the cottage. The answer to this is that Jali relies on its ownership of Lot 261 on which the cottage is located; (d) there was no written lease between Jali and the applicant until 2005 and she occupied the cottage throughout that period. That is true as far as it goes; however, given that Jali is the registered proprietor, it is insufficient to establish that Jali does not own the cottage or that she does. Moreover, the Jali business record referred to at (b)(ii) above is consistent with Jali's ownership and a landlord and tenant relationship for it describes the cottage as tenanted and refers to rental; (e) Ms Roberts gave evidence in cross-examination of her understanding that ownership of another building on Cabbage Tree Island was shared between Jali and a third party. I am not sure that the applicant relied on this in closing addresses, but in any case it is insufficient to establish that cottage 24 was not owned by Jali but by the applicant; (f) the applicant in closing addresses also contended that there was no evidence of development approval or a construction certificate for the cottage. As that was not earlier identified as an issue, I think it would be unfair to Jali to entertain it when Jali had no opportunity meet it. Even if I were to accept the contention, I do not think that it significantly advances the applicant's ownership case. Residential tenancy agreement 24 The applicant submits that the residential tenancy agreement was void for the following reasons, which I do not accept: (a) she and not Jali owned the cottage and therefore Jali could not lease it to her. I have earlier rejected the applicant's ownership argument; (b) the agreement was entered into under duress. The applicant argued that Jali acted "unconscionably" because it asked her to sign an agreement after she had been in possession for 15 years and could not comply with a condition of the agreement that she would have vacant possession because she was already in possession. This ignores the deal that her rental arrears would be written off when the agreement was signed. In any case, it is incapable of constituting duress. I accept the evidence of Jali witnesses that the agreement was on the basis that Jali would write off her rental arrears, that she appeared very pleased and agreed to sign the agreement, and that she appeared to sign it freely and voluntarily. Notice of termination 25 The applicant's argument that the notice of termination of the residential tenancy agreement is void because she was denied procedural fairness boils down to an assertion that Jali was obliged to give her notice of the 2007 and 2008 Jali Executive and Board meetings. I am unable to see why there was any obligation to give her such notice. Furthermore, I have held that subsequent to the 2007 Executive meeting, a meeting was held between Jali representatives and her at which she was given notice of the three options decided by the Executive, which she rejected. Stay 26 Seemingly as a result of a perception that the applicant's s 40AA argument had disintegrated because Lot 261 was vested in Jali under s 35 and not s 36, at the end of closing addresses the applicant made a freestanding submission that the proceedings need to be stayed or adjourned until the Federal Court proceedings are determined. I am disinclined to accede to such a submission made at the heel of the hunt without a formal application for a stay or adjournment, without supporting evidence and without notice. On the material before me, I am also not persuaded that there is sufficient reason for a stay or adjournment even if an application had been properly made on notice. Conclusion 27 For these reasons, the summons is dismissed. Costs are reserved. There will no order as to costs unless an application for costs is made within 14 days. The exhibits may be returned. 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