Aboriginal land council members control decisions about tenancies
Aboriginal land council members control decisions about tenancies
As a result of a decision of the Land and Environment Court, for a time, local Aboriginal land councils could only terminate tenancies if their members had voted to do so. Subsequently, this development has been the subject of legislative change by the NSW Parliament. From 16 November 2011, land council members no longer have to vote on a decision to terminate a residential tenancy agreement – such decisions may now be taken by the CEO of a land council.
A decision by the NSW Land and Environment Court concerned powers of a Local Aboriginal Land Council (LALC) to terminate a tenancy. From now on, members of LALCs will have greater control over the granting and termination of tenancies.
The TU acted for two tenants in the matters Woods v Gandangara Local Aboriginal Land Council and Thatcher v Gandangara Local Aboriginal Land Council where each was given a termination notice by the LALC.
The issue
The LALC passed a resolution at a meeting of its members authorising the CEO to pursue all tenants who failed to comply with their tenancy agreements.
Following this meeting, the LALC issued a termination notice without grounds to two of its tenants. The decision to terminate the tenancies was not put to the LALC’s members at a meeting. Instead, the CEO authorised the terminations and carried out steps to end the tenancies.
The case centered around the provisions in the NSW Aboriginal Land Rights Act 1983 (the Act), which required LALCs to pass a resolution of the voting members concerning any dealing with land.
Court action and outcome
The TU argued that:
- the granting and termination of a residential tenancy agreement was a dealing with land and as such, it was necessary for the LALC to pass a resolution of its members for these to validly occur
- this function could not be delegated to any other person or body – even by the members passing a general resolution that gave their authority.
The court found that:
- the function of terminating a residential tenancy agreement was a dealing with land listed under section 52G(e) of the Act, and as such, requires a motion to be passed by the voting membership for it to validly be carried out
- the Act was designed to benefit Aboriginal people – not their LALCs. In this way, the participation of members in the dealings of the LALC, particularly concerning the land in which they have been vested, is essential to achieving the objects of the Act.
Effect of the decision
Housing provided by LALCs under the Act is an important means of providing Aboriginal people with long-term, low-cost, culturally appropriate housing. This decision increased the security of tenure that tenants of LALCs can enjoy. The process of requiring a majority of the voting membership to pass a motion to grant or terminate a tenancy had the potential to serve as a safeguard from arbitrary termination for LALC tenants.
It also meant that members had greater control over the important dealings of the LALC. Where these functions were previously the responsibility of the LALC management, members had an opportunity to ensure that houses are granted correctly and that tenancies were only terminated with the agreement of a majority of the voting membership.
Following this decision, the practices of land councils had to change. Some of these changes were seen as undesirable and gained the attention of the NSW Aboriginal Land Council and the Minister for Aboriginal Affairs. Subsequently, the Act was amended, in effect overturning the decision of the Land and Environment Court.