In Tweed Byron Local Aboriginal Land Council v Williams [2024] NSWSC 868 the Court states
The Land Council, a body corporate constituted under s 50 of the Aboriginal Land Rights Act 1983 (NSW), is the registered proprietor of land at Banora Point where it understood the defendants were living when it brought these proceedings in January 2024. It finally sought orders for possession of the property against only Mr Williams, having sought and been given leave at the hearing to discontinue the proceedings against the other defendants, who it understands no longer live at the property and who have not been served or active in the proceedings.
Mr Williams filed a defence, by which he accepted that the Land Council was the registered proprietor, but pleaded amongst other things, that he had occupied the land with the consent of two unnamed directors of the Land Council, with the result that there had been no trespass; that persons who had requested him to leave the property had no authority to do so; that the Land Council has not held a lawful meeting since 2011 to provide it with powers of eviction; that the persons who had sent him correspondence the Council relied on had not authority to serve it; and that the Council has ten vacant houses which it has not let under any program.
Mr Williams also filed an affidavit, but it did not go into evidence. That was because by email sent to the Court the night before the hearing, Mr Williams advised that he would not be appearing and that he was no longer the Caretaker on behalf of the Minjungbal Tribal Discretionary Trust. He also there indicated that he was a “Protected Man under the protection of the Original Sovereign Tribal Federation Discretionary Trust as recognised and Apostilled by the Crown in the Right of THE COMMONWEALTH OF AUSTRALIA on the 6th Day of May 2019”, as well as “protected as a Minjungbal Sovereign Tribal Man under the Minjungbal Tribal Discretionary Trust as recognised and Apostilled by the Crown in the Right of THE COMMONWEALTH OF AUSTRALIA ON THE 5TH Day of December 2019”. The result of Mr William’s advice was that the hearing proceeded ex parte, the orders which the Land Council sought not being opposed, it understanding that despite his advice, Mr Williams was still residing at the property. ...
The evidence established that Mr Williams had retained Leverage Solicitors, who had informed the Council’s solicitors in August 2024 that while it was accepted, “for the purpose of land registration”, that the property vested in the Council, it was not accepted that “the Land Council officially owns this property”. That was contradictory and did not accord with Mr Williams’ defence, where he admitted that the Council was the registered owner of the property.
Leverage Solicitors also claimed that while the land does vest in the Council, it holds the land on trust for local Aboriginal nations, tribes and clans and that it was thus a trustee, not a beneficiary; that it had a fiduciary duty to them and had to act in their best interests, not that of the Council; that the property fell within the lands of the Minjungbal people; that it had been uninhabited for more than 6 years; that Mr Williams was occupying the property and using it for Minjungbal nation purposes; that the beneficial owners of the land were the Minjungbal people; and that the Council should bring proceedings in this Court, if it wished to evict Mr Williams. No basis for those claims was there or later revealed and they were not accepted by the Council.
Mr Williams’ right to occupy the property without the Council’s approval being so disputed and he continuing to refuse to vacate, it brought these possession proceedings, the local police having declined to assist it, without an order of this Court.
In other communications it was claimed that Mr Williams was the trustee of the Minjungbal Tribal Trust, which had established a “Cultural Archiving Centre” at the property, which was to be used for specified purposes, including respite for tribal and clan elders who needed a short-term place to stay and would like their cultural stories archived.
The Council’s solicitors advised in November 2023 that Mr Williams did not have its permission to enter or remain on the property and gave notice that he was to immediately vacate and not re-enter the property. Proceedings under the Inclosed Lands Protection Act 1901 (NSW) were also threatened, but have not been pursued. Nor were damages for trespass finally pressed.
I am satisfied that, on all of the evidence, the Council has established a basis for the possession orders that it pursued.
The Act provides for the constitution of a Local Aboriginal Land Council for each Local Aboriginal Land Council area: s 50(1). Each Council is a body corporate: s 50(2). The corporate name of each Local Aboriginal Land Council is “Local Aboriginal Land Council”, preceded by the name of the area of the Council: s 50(3). ..
The members of the Local Aboriginal Land Council for a Local Aboriginal Land Council area are the adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for that area: s 53. Qualification for membership is further dealt with in s 54, by reference to residence or other association. On the unchallenged evidence of Ms Williams, Mr Williams is not a member.
Councils are required to have Boards consisting of between 5 and 10 members, with part 2 of schedule 3 of the Act regulating their operation. Their functions are to direct and control the Council’s affairs in accordance with the Act and the regulations and consistently with the Council’s community, land and business plan: s 62. Board members must be elected at every fourth annual meeting of the Council: s 63. Chairpersons are elected from amongst the Board members: s 64. The Board may delegate functions to its chief executive officer: s 72. That Ms Williams was the Land Council’s chief executive officer was also not in issue. Her evidence was unchallenged and must be accepted. Provision is also made for the Minister to take steps to deal with Councils which cease to function: s 233. The New South Wales Aboriginal Land Council may also make a performance improvement order in respect of any Local Aboriginal Land Council, if it reasonably considers that action must be taken to improve the Local Council’s performance: s 234A.
Mr Williams’ email suggested that the Council had mismanaged the property, which was being investigated by the Registrar, Premier and other investigative bodies, but there is no evidence of such investigations being pursued. It also suggested that the Minjungbal Tribal Discretionary Trust had replaced the “Parish Trust” or any other purported trust over Minjungbal Tribal Lands, as well as assets within the Minjungbal Tribal Estate with effect from the 5th day of December 2019.
But neither Mr William’s defence, his email communication, nor that of his solicitors establish that the property is part of Minjungbal Tribal Lands; that the Minjungbal Tribal Discretionary Trust exists; that the property is held by that trust, or that he is one of its beneficiaries. That all required more than statements of belief.
It was not suggested that this claimed trust was one established by the Council. As registered owner of the property, it could have conceivably put the property into a trust, so long as that accorded with the provisions of the Act which regulated its operations, but there is no evidence that it had done so.
Nor is there any evidence that any other person or body had any interest in the property, which would have empowered them to establish any trust which could have had any effect on the Council’s legal ownership of the property, or created any equitable interest in it. Even if the claimed trust existed and it was established that Mr Williams was a beneficiary, that would not entitle him to possession of the property, as RS Hulme J explained in Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155. A “trespass can be committed even if the entry is made under a mistake of fact and even though the person entering honestly believes that the land is his own or that he has a right of entry on it”: Barker v The Queen (1983) 153 CLR 338 at 370; [1983] HCA 18. Further, a beneficiary of a trust has no right to possession: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 519.
It follows that even if it were accepted that the Minjungbal nation exists, as Mr Williams clearly believes, that it has a legal existence separate from the persons who may constitute it, let alone any legal interest in the property of which the Council is the registered proprietor, which it could have exercised to create any trust which could affect that property, so as to entitle Mr Williams to occupy it, that had to be established by evidence.
That was not attempted by Mr Williams. Even if the possibility of such an interest could be accepted, of which I am not persuaded, Mr Williams not having appeared to defend the Council’s case, its existence cannot be established by the mere assertion of Mr William’s understanding and beliefs.
