Bidjara Aboriginal Housing & Land Company Ltd v Indigenous Land Corporation

REASONS FOR JUDGMENT 1 On about 23 July 1997 the first respondent, the Indigenous Land Corporation ("the ILC"), acquired a substantial pastoral lease over land called "Mount Tabor Station" near Augathella in Queensland. The impetus for the purchase had come from the applicant company in the previous year. It had put forward an application for registration of a land need, pursuant to the legislation to which I shall refer below. This led to an assessment, in August 1996, by a land use and planning consultant and his recommendation to the Board of the ILC that the land be purchased. The property was there described as of cultural significance to the Bidjara people and it included sacred, cultural and historical sites. It was said that many large Aboriginal family groups, predominantly from Charleville, could trace a traditional and historical link to Mt Tabor Station and the adjoining property. The proponent of the purchase, the applicant, was described by the consultant as an established Bidjara resource agency with support services and a financial management structure. So far as concerned "policy matters", Mt Tabor Station was described as a "pastoral lease with uncertain Native Title opportunities". On 26 August 1996, the board of the ILC agreed that it acquire the leasehold property pursuant to s 191D(1)(b) of the Aboriginal and Torres Strait Islander Commission Act 1989, (the "ATSIC Act") which is in Part 4A, entitled "Indigenous Land Corporation and Aboriginal and Torres Strait Islander Land Fund", for the purpose of granting that interest to an Aboriginal Corporation pursuant to s 191D(1)(a) of the Act. It was also agreed that the final decision to acquire, and any conditions applicable to the final decision, should be conditional upon: "(a) The ILC resolving which body, other than the Bidjara Land and Housing Aboriginal Corporation, should be the new owner; …". 2 As events transpired no such body was identified, either prior or subsequent to the acquisition. 3 The applicant was not advised of this aspect of the ILC's decision to purchase. Correspondence shows that the ILC had been in communication with the applicant about a caretaker or management role with respect to the property after purchase. The manager of the Eastern Division of the ILC said that he was aware of the possibility of a dispute concerning the representation of the Bidjara people, some nine or ten months prior to the acquisition of the property, although it was only at the time of settlement that one of the persons, Mr Lawton, who was said to be one of the Council of the Bidjara Elders, came to see him. 4 The applicant company, of which Mr R Robinson is the chair, has amongst its members a number of Bidjara people. Persons other than the Bidjara, including non-indigenous persons, and comprising up to forty per cent of the membership of the company, are also entitled to join it. The requirement of the applicant is that its members must reside in the Warrego area. Some persons claiming to be Bidjara do not live in this area. Another company, the Bidjara Traditional Owners Aboriginal Corporation for Land Culture and Heritage Pty Ltd, of which Mr Robinson's brother is the chair, supports the grant of the property acquired by the ILC to the applicant. The second respondent contends that the applicant does not represent the Bidjara people or the Country. It seeks to represent Bidjara peoples only, although how this is to be achieved has not yet been resolved. In particular there is a dispute as to whether one family, referred to in the native title claims, to which I shall shortly refer, is Bidjara. It remains to mention that the ILC accepts that both the applicant and the second respondent are Aboriginal Corporations for the purposes of the Act, being Aboriginal associations incorporated under Part IV of the Aboriginal Councils and Associations Act 1976. 5 Shortly prior to the ILC acquiring the Mt Tabor property, and on 11 July 1997, the first of the native title claims, which included the subject property, was made by members of the Lawton and Fraser families who claim to be members of the Bidjara Council of Elders. The application was said to be made on behalf of themselves, and for and on behalf of the Bidjara Peoples. The second native title claim, by three persons, again said to be on behalf of the Bidjara Peoples and their clan groups, was filed on 28 October 1997. On 19 December 1997 Mr R Robinson filed an application on behalf of the Bidjara People, with respect to the lease area and that claim has been registered. 6 No grant of the pastoral lease has been made by the ILC. It explains its delay, or inability to do so, by reference to the dispute which has arisen as to the representation of the Bidjara People and, as a result, the lack of any corporation to whom it might make a grant under its own guidelines. It believes that a resolution of these matters might be achieved at some point in the native title proceedings. The applicant contends that the ILC is obliged, under the Act, to proceed to decide to make a grant to an aboriginal corporation.