Lawson v Minister for Environment and Water

Case •

[2020] NSWSC 186

•

10 March 2020

No judgment structure available for this case.

Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Lawson v Minister for Environment and Water [2020] NSWSC 186
Hearing dates: 31 October 2019
Date of orders: 10 March 2020
Decision date: 10 March 2020
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   The questions for determination be answered as follows:
Q1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917?
A.   Yes
Q2.   If the answer to question 1 is “Yes”:
a. is the consequence of the vesting by the RMW Act that any and all interests in the land to which s 18 [of] the RMW Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the RMW Act? and
b. was the vesting of the land by the RMW Act a ‘previous exclusive possession act’ for the purposes of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?
A.   a.   Yes
b.   Yes
2.   Dismiss the applicant’s amended notice of motion filed 9 August 2019 with costs.
3.   Dismiss the proceedings with costs.

Catchwords:

STATUTORY INTERPRETATION – Legislative purpose – whether land vested in South Australia for an estate in fee simple under s 18 River Murray Waters Act 1915 (NSW) on commencement of that Act on 31 January 1917 – whether, as a consequence of the vesting, any and all interests in the land acquired through adverse possession or held as native title rights were extinguished upon commencement of the Act – was the vesting of the land by the Act a “previous exclusive possession act” for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)

  PROCEDURE – separate questions for determination
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Crown Land Acts 1884 (NSW)
Crown Lands Alienation Act 1861 (NSW)
Crown Lands Consolidation Act 1913 (NSW)
Native Title (New South Wales) Act 1994 (NSW)
Native Title Act 1993 (Cth)
Public Works Act 1912 (NSW)
Racial Discrimination Act 1975 (Cth)
River Murray Waters Act 1915 (NSW)
Western Lands Act 1901 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Amodu Tijani v The Secretary Southern Nigeria [1921] 2 AC 399
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Barkandji Traditional Owners (No 8) v Attorney General of New South Wales [2015] FCA 604
Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178; [2000] FCA 1609
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
City of Perth v Crystal Park Ltd (1940) 64 CLR 153; [1940] HCA 35
CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400; [1968] HCA 77
Clissold v Perry (1904) 1 CLR 363; [1904] HCA 12
Country Carbon Pty Ltd v Clean Energy Regulator (2018) 267 FLR 126; [2018] FCA 1636
Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15
Fejo v The Northern Territory (1998) 195 CLR 96; [1998] HCA 58
Griffiths v Northern Territory (2006) 165 FCR 300; [2006] FCA 903
Griffiths v Northern Territory (No 3) (2016) 337 ALR 362; [2016] FCA 900
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30
Jones v State of Queensland [2000] QSC 267
Karpany v Dietman (2013) 252 CLR 507; [2013] HCA 47
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899
Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308
Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127
Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165
Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189
Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23
Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168; [2000] FCA 478
Northern Territory v Griffiths (2019) 93 ALJR 327; [2019] HCA 7
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656; [1993] HCA 45
Powell v McFarlane (1977) 38 P&CR 452
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Starkey on behalf of the Kokatha People v State of South Australia (2018) 261 FCR 183; [2018] FCAFC 36
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
The Mersey Docks and Harbour Board v Henderson Brothers (1888) 13 App Cas 595
The Queen v A2 [2019] HCA 35
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40
Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29
Yanner v Eaton (No 2) (1999) 201 CLR 351; [1999] HCA 69
Young v Owners – Strata Plan No 3529 (2001) 54 NSWLR 60; [2001] NSWSC 1135
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 February 1915
New South Wales, Government Gazette, No. 166, 1 December 1922
Category:Procedural and other rulings
Parties: Dorothy Lawson (Plaintiff/Applicant)
Minister for Environment and River Murray, South Australia (First defendant/First Respondent to motion)
State of New South Wales (Second defendant/Second respondent to motion)
Representation:

Counsel:
A McAvoy SC with D Yarrow (Plaintiff/Applicant)
DF O’Leary (First defendant/First Respondent to motion)
JA Waters (Second defendant/Second respondent to motion)

  Solicitors:
Gilbert + Tobin (Plaintiff/Applicant)
Crown Solicitor of South Australia (First defendant/First Respondent to motion)
Crown Solicitor of New South Wales (Second defendant/Second respondent to motion)
File Number(s): 2019/00144321
Publication restriction: Nil

Judgment

  1. HER HONOUR: Before me on 31 October 2019 were two notices of motion: an amended notice of motion filed 9 August 2019 by the applicant in these proceedings (Mrs Dorothy Lawson) seeking leave to amend her originating application for compensation under the then Public Works Act 1912 (NSW) (the Public Works Act); and an amended notice of motion filed 2 October 2019 by the first respondent (the Minister for Environment and Water (SA)) for the separate determination of preliminary questions (the form of which has been agreed between the parties). The second respondent to both motions is the State of New South Wales.

  2. It was common ground that if the preliminary questions were to be answered in the manner for which the respondents contended then the amendment application would fall away; and indeed that this would be determinative of the proceedings as a whole, on the basis that any native title rights or possessory title in respect of the land the subject of the substantive application would have been extinguished under the grant of fee simple made under s 18 of the River Murray Waters Act 1915 (NSW) (the River Murray Waters Act) and hence the claim by the applicant for compensation would effectively be unmaintainable to the extent that it deals with those aspects of the land (since there would be no compensable interest arising in 1922 when there was a Gazette Notice issued under the Public Works Act) (see T 18.14; T 26.42).

  3. I therefore proceeded first to hear argument on the preliminary questions, having earlier made orders for the separate determination of those questions pursuant to the first respondent’s amended notice of motion, before hearing argument on the amendment application.

  4. The questions to be separately determined are as follows:

1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917?

2.   If the answer to question 1 is “Yes”:

a. is the consequence of the vesting by the RMW Act that any and all interests in the land to which s 18 [of] the RMW Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the RMW Act? and

b. was the vesting of the land by the RMW Act a ‘previous exclusive possession act’ for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?

Background

The River Murray Waters Act

  1. The River Murray Waters Act, which was assented to on 17 February 1915 and commenced on 31 January 1917, ratified and provided for the carrying into effect of an agreement entered into on 9 September 1914 between the Prime Minister and the Premiers of the States of New South Wales, Victoria, and South Australia in respect of the River Murray, Lake Victoria and other waters (the Agreement).

  2. In his second reading speech on 10 February 1915, the then New South Wales Minister for Public Works, Mr Arthur Griffith, explained the scheme of the then proposed Act under which, upon ratification of the Agreement by the participating legislatures, each of the three States was to contribute £1,200,000, and the Commonwealth to contribute £1 million, to meet the cost of proposed works (including, but encompassing substantially more than, the proposed works at Lake Victoria (Lake Victoria Works)). In so doing, the Minister said that:

The understanding is that the work at Lake Victoria is to be the first established, because the lake is to be filled entirely with flood waters. None of the ordinary flow of the river will be used in the Lake Victoria scheme, which is absolutely for the saving of water. The whole of the water which is to go into that lake would otherwise be lost in flood time. To make it possible for the South Australian people to conserve this water, we have had to give them the land which contains the lake.

…

The only proposal possible to meet South Australian requirements was that Lake Victoria, which is just inside our territory, should be handed over in fee-simple to the State of South Australia. Politically it will remain part of New South Wales, but the lake will be the property of the Government of South Australia.

[Emphasis added]

  1. The Minister said that he did not think that the Agreement “could have been consummated and the claims of South Australia justified except for the generous grant by the Commonwealth of £1,000,000 towards the cost [which additional funds had had] ... a very material effect in smoothing away the difficulties”. The Minister also said the following, in respect of apparent opposition to the proposed transfer of land to South Australia “free of cost”:

Mr Arthur Griffith: South Australia is going to spend as much is New South Wales and they must have something for it ...

South Australia gets very little — only about 700,000 acre-feet. South Australia also gets the ground contained in Lake Victoria storage …

  1. The State Governments were to be the Constructing Authorities, and the Agreement provided that the Lake Victoria Works and the works in relation to the weirs in South Australia were to be carried out by the South Australian Government.

  2. The Agreement, a copy of which is contained in a schedule to the River Murray Waters Act (see the definition in s 4 of the Act), was expressed to be “subject to ratification by the Parliaments of the Commonwealth, and of the States of New South Wales, Victoria and South Australia; and shall come into effect when so ratified” (see cl 1).

  3. The Agreement provided for the construction by the Government of South Australia of certain works between the mouth of the River Murray and Wentworth (which works included the Lake Victoria Works).  Clause 27 provided that “works constructed by any Government under this Agreement shall be operated and controlled by such Government”.  Clause 29 provided that:

29.   A contracting Government within whose State any works for the purposes of this Agreement are to be or are being or have been constructed by another Contracting Government or constructing authority shall grant to such other Contracting Government or constructing authority all such powers, licences, and permissions in and to the use of or with respect to its territory as may be necessary for the construction, maintenance, operation, and control of such works in addition to the powers of a constructing authority and for carrying out any operations authorised by this Agreement.

  1. As to the Lake Victoria Works, for which provision was made in Part VIII, cll 54-55 of the Agreement provided as follows:

54.   The States of New South Wales and Victoria, so far as they can do so and as may be necessary in pursuance of this Agreement, will authorise and facilitate the construction and maintenance and the use by the State of South Australia of the Lake Victoria Works mentioned and described in Schedule A to this Agreement.

55.   To the end and for the purposes mentioned in the next preceding clause of this Agreement the State of New South Wales will transfer to and vest in the State of South Australia for an estate in fee simple, subject to the conditions hereinafter expressed, the lands mentioned and described in Schedule B to this Agreement.

  1. Schedule B described the said lands in the following terms:

SCHEDULE B

That piece of land situated in the State of New South Wales, and covered with water now known as Lake Victoria, with the two water courses known as Rufus River and Frenchman’s Creek, connecting the River Murray with the said lake for and throughout their entire course from the said river to the said lake; also so much of the banks and foreshores of the said lake and watercourses, and of the land adjoining thereto, as shall be sufficient for all purposes of access to and use and enjoyment of the Lake Victoria Works.

  1. As will be seen in due course, attention was drawn in the respective parties’ submissions to the significance (or otherwise) of the presence of the semi-colon in the above description of the lands to be vested in the State of South Australia.

  2. Clauses 56 and 57 of the Agreement provided:

56.   After the commencement of the Lake Victoria Works, the State of South Australia may at all times divert into Lake Victoria for impounding or storing therein the waters of the River Murray flowing at the site or sites of the offtake or offtakes for diversion into Lake Victoria, except so much of such waters as under this Agreement New South Wales or Victoria shall have allowed to pass down the river for diversion supply or use to or in their respective territories, or as may be required for the purposes of this Agreement at all places below any such site.

57.   Subject to this Agreement and to the Acts ratifying the same and to any right at the date when this Agreement comes into effect lawfully exercisable by an occupier of land on the bank of the said lake to use the water being in the said lake for domestic purposes or for watering cattle or of livestock, or for gardens not exceeding five acres in extent used in connection with a dwelling house, and to the general right of all persons to use such water for domestic purposes or for watering cattle or other stock at places on such lake to which at the said date there is access by public road or reserve, the water impounded or stored in Lake Victoria shall be devoted to such uses as may be determined by the Government of South Australia, which, subject to any directions of the Commission, may at the times and in the quantities it thinks proper, release such water for conveyance by the channel of the River Murray to the eastern boundary of the State of South Australia: Provided that the water so stored shall be used primarily for the purpose of aiding to maintain the regulated supplies of water at Lake Victoria outlet provided for in clause forty-nine of this Agreement: Provided also that the State of South Australia, subject to this Agreement, will at the request of the State of New South Wales make provisions where necessary for and permit the reasonable use of the waters of the said lake by occupiers on the settlement of lands of a total area not exceeding 200,000 acres in the vicinity of Lake Victoria for domestic purposes and for watering their cattle and other stock: Provided further that if access to the watering-places aforesaid by public road or reserve be interfered with by the construction of the said Lake Victoria Works, the State of South Australia will, on the request of the State of New South Wales, provide such other watering-places in lieu thereof as shall not interfere with the said works.

Relevant provisions of the River Murray Waters Act

  1. The purpose of the River Murray Waters Act has been explained already. Section 16 of the River Murray Waters Act provided that:

16.   For the purpose of the construction, maintenance, operation, and control, pursuant to this Act and the agreement, of works by or on behalf of any contracting Government other than the Government of New South Wales —

(a) such Government, or any authority or person thereto authorised by it, may exercise the like powers and privileges, but subject to the like conditions, as the Minister for Public Works may exercise for the construction, maintenance, operation, and control of works under this Act by or on behalf of the Government of New South Wales; and for the purpose of such construction shall be the constructing authority within the meaning of the Public Works Act, 1912.

(b) the Governor, at the request of such Government, may under the Public Works Act, 1912, appropriate, resume, or purchase land required for such works.

  1. Section 18 (headed “Lake Victoria”) provided as follows:

18.   The lands mentioned in Schedule B to the agreement are hereby vested in South Australia for an estate of fee-simple, and may, subject to the conditions expressed in the agreement, be granted or transferred to any person appointed in that behalf by the Government of the said State.

  1. “The agreement” referred to in s 18 was that defined by s 4 as “the agreement, a copy of which is set out in the Schedule” (i.e., the agreement referred to above). “The Schedule” was defined simply as “the Schedule to this Act”.

The Lake Victoria Works

  1. The construction of the Lake Victoria Works was the subject of an historical report prepared in 1984 (to which reference was made by Whitlam J in proceedings commenced by the present applicant in the Federal Court of Australia, Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127 (Lawson Federal Court Proceedings 2003), to which I will refer shortly). Reference was made in that report to a works proposal approved by the River Murray Commission on 7 December 1918 for what was described as a modification of Frenchman’s Creek to form an effective inlet channel to Lake Victoria. In describing this, Whitlam J noted (Lawson Federal Court Proceedings 2003 at [12]) that:

12.   … This involved cuttings in order to bypass large meanders in the creek and make a more direct route.  Two channels, one 3606 metres long and the other 1536 metres long, caused the diversions in Frenchman’s Creek that Mr Jackson noted.  Excavation work for these channels was commenced in August 1919 and completed in August 1922.  The inlet channel was not, however, flooded until 1927.

Gazette Notice

  1. In December 1922, the following declaration was gazetted (Gazette Notice) (New South Wales, Government Gazette, No. 166, 1 December 1922, pp 6309 and 6310):

… so much of the land hereunder described as is Crown Land has been appropriated, and so much thereof as is private property has been resumed, under the Public Works Act, 1912, for the following public purpose, namely, the construction of the Lake Victoria Works referred to in the River Murray Waters Act, 1915, and is vested in South Australia, for an estate in fee simple for the purposes of the River Murray Waters Act, 1915, and Acts amending the same.

  1. Pausing here, it is relevant to note that the wording of the 1922 Gazette Notice was expressed in the past tense (i.e., a declaration that certain land “has been appropriated” and that certain of that land “has been resumed”).

2003 Federal Court proceedings

  1. In 2003, as adverted to above, the applicant commenced proceedings relating to the lands the subject of the claim in the present proceedings, seeking a determination of native title and compensation under the Native Title Act 1993 (Cth) (Native Title Act) (see Lawson Federal Court Proceedings 2003; Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 (Lawson Federal Court Proceedings 2004); and Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308 (Lawson Full Federal Court Proceedings)).

  2. In Lawson Federal Court Proceedings 2003, Whitlam J considered a series of questions that had been formulated for decision in advance of the trial (adopting a course not dissimilar to the process followed in the present proceedings).

  3. There, an application had been made for compensation (in proceeding no. 6167 of 1998) in respect of an area of land that overlapped with the area over which a claim was made by the native title determination application in another proceeding before the Court (proceeding no. 6070 of 1998). His Honour noted that both applications were made prior to the 1998 amendments to the Native Title Act and that not all the applicants in the claimant application were applicants in the compensation claim, but that each application stated that it was also made on behalf of the Barkandji People. His Honour noted that the questions there stated raised for consideration: “the identification of the precise area of land or waters covered by the applications, the characterisation under the provisions of Div 2B of Pt 2 of the [Native Title] Act of certain ‘acts’ attributable to New South Wales, and the effect of s 20 of the Native Title (New South Wales) Act 1994 (NSW)” (NSW Native Title Act) (see at [1]).

  4. As was foreshadowed by the first of the stated questions, his Honour noted that the precise boundaries of the land in question were unclear (see [3]). His Honour referred in that regard (at [4]) to the evidence given by Andrew Dean Bell (a land and engineering survey draftsman employed by the NSW Department of Land and Water Conservation), by John Jackson (a survey draftsman employed by the same Department) and by Michael Flynn (a professional historian employed in the NSW Crown Solicitor’s office). (The affidavits affirmed by each of Mr Bell and Mr Jackson and filed in those earlier proceedings were tendered in the present proceedings – see the evidentiary rulings in this regard at T 5-6.)

  5. Mr Jackson had deposed in his affidavit as to the area of land and waters referred to in Schedule B to the Agreement, as follows:

Lake Victoria, Rufus River and Frenchmans Creek are original natural water bodies located on the northern side of the River Murray within the far south-western corner of the State of New South Wales.  They were shown as such on the early maps and plans of the Department for some time before 1900.  Those maps and plans indicate that the water flow through these water bodies at times of normal water levels in the River Murray was probably generally downstream (westward) from the River Murray along the full course of Frenchams [sic] Creek into Lake Victoria and from Lake Victoria down the full course of Rufus River to the River Murray.  At times of high water levels in the River Murray the records indicate that the direction of flow along Rufus River would have been reversed.  Lake Victoria and the watercourses of Rufus River and Frenchmans Creek which naturally filled and drained it might therefore be seen as a giant billabong.

  1. At [6] in the Lawson Federal Court Proceedings 2003, Whitlam J noted that:

6.   Two pieces of land are described in the Gazette notification: one ‘known as Lake Victoria, the two watercourses known as Rufus River, and part of Frenchman’s Creek, connecting the River Murry (sic) with the said lake, the banks and foreshores of the said lake and watercourses, and lands adjoining thereto, inclusive of roads’ and ‘containing an area of 32,042 acres’ and the other ‘being part of the watercourse known as Frenchman’s Creek connecting the River Murray with Lake Victoria, the banks and foreshores of the said watercourse and lands adjoining thereto inclusive of roads’ and ‘containing an area of 4,409 acres’. 

  1. At [11], his Honour said that:

11.   The boundaries of the two pieces of land described in the Gazette notification are shown in Drawings Nos 1 and 2 compiled by the chief survey draftsman of the NSW Department of Public Works and dated 27 June 1922.  Copies of these plans (‘the resumption plans’) have been received in evidence.  Mr Jackson has looked at the copies of those plans.  He points out that, whilst the description in Schedule B to the agreement is apt to include ‘the whole of the bed of Lake Victoria to the line of its foreshore and the beds of Rufus River and Frenchmans Creek to the line of their banks and extending the full length of their courses from the confluence with the River Murray’, two sections of the watercourse of Frenchman’s Creek as at the date of the Gazette notification were shown as outside the boundaries of the land to be acquired in the resumption plans.  Mr Jackson prepared a plan of his own depicting this discrepancy.

  1. At [12], his Honour went on to say that the reason for the abovementioned difference appeared from a report appended to Mr Flynn’s report, which gave an historical account of the construction of the Lake Victoria storage (to which report I have referred at [18] above).

  2. His Honour also noted (at [15]-[16]) that:

15.   A ‘status report’ prepared by Mr Bell on 20 October 1998 has also been received in evidence.  This report gives details of ‘land administration, tenure and title events’ in respect of the land described in the Gazette notification.  In particular, Mr Bell has singled out 27 separate grants by the Crown in that area of an estate in fee simple to various individuals and private companies between 12 April 1872 and 23 March 1920.  The characterisation of these Crown grants is also raised in the questions for decision.

16. Section 19(2) of the River Murray Waters Act 1915 (SA) provided that any lands in any other State, which were to be transferred to and vested in the State of South Australia under the agreement, should be transferred to and vested in the Commissioner of Public Works who was constituted a body corporate for the purposes of that Act. Mr Bell’s status report shows that on 24 October 1923 the Commissioner lodged with the NSW Registrar General pursuant to s 46(1) of the Public Works Act a copy of the Gazette notification in respect of pieces of the lands which had been the subject of the 27 Crown grants mentioned; that on 6 May 1926 the Registrar General recorded particulars of those resumptions in the register books; and that on 15 July 1927 he issued certificate of title volume 4028 folio 224 showing the Commissioner as proprietor of an estate in fee simple in those resumed lands.

  1. At [19], his Honour noted that “all parties accepted that the effect of the publication of the Gazette notification was to vest the land taken in the State of South Australia for an estate in fee simple” (though New South Wales Native Title Services Limited (NTS) had submitted that such vesting was not a previous exclusive possession act under s 23B(2) of the Native Title Act).

  2. At [20]-[21], his Honour said:

20. The scheme of Div 2B of Pt 2 of the Act has been explained by the High Court in Western Australia v Ward (2002) 76 ALJR 1098 at 1107 [8-10], 1115-1116 [41]-[45], 1134-1136 [135]-[140]. NTS initially submitted that the State of South Australia held only a limited estate in fee simple as trustee for the purposes of the River Murray Waters Act. The argument echoed that rejected in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15 (CA) at 21-24. It could not survive what the majority said in Ward (at 1156 [249]) about the vesting of land on trust for statutory purposes. NTS acknowledged as much in its supplementary submissions following that decision.

21. NTS persisted, however, with a submission that the vesting in the State of South Australia conferred only a radical title on that State and that the resumptions were qualified by the reservation of rights in cl 57 of the agreement. This submission pays no regard to the terms of s 23B of the [Native Title] Act and completely fails to come to grips with the central proposition, reaffirmed in Ward (at 1148 [204]), that the vesting of an estate in fee simple in the Crown will extinguish any native title over the subject land. The acquisition and ownership by the State of South Australia of land within New South Wales is to be accommodated with fundamental feudal concepts of landholding in the same way as Windeyer J explained the position of the Commonwealth in an analogous situation in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 125. In any event, cl 57 of the agreement conferred no proprietary rights on any person to use the water in Lake Victoria. The parties to the agreement were the Contracting Governments, and the provisos to cl 57 show that the use of that water and access to watering places were matters to be worked out between the Governments of South Australia and New South Wales. (Although the agreement was extensively amended in the intervening years, express provision for the use of Lake Victoria’s water by the occupiers mentioned in cl 57 survived into the substituted agreement made between the Contracting Governments in 1982. However, when that agreement was itself superseded by the agreement made in 1992 and approved by the Murray-Darling Basin Act 1993 (Cth), all reference to such occupiers disappeared.)

  1. His Honour concluded (at [22]) that:

22. It is perfectly plain that the Gazette notification satisfies the three requirements set out in s 23B(2) of the Act and, in particular, that the vesting fell within the category specified in subpara (ii) of s 23B(2)(c). Moreover, par (a) of s 23B(9C) is engaged because in 1922 such vesting in the Crown was valid and effective to extinguish native title at common law, that is, ‘apart from this Act’. The Gazette notification was thus a ‘previous exclusive possession act’ within the meaning of s 23B, and the separate question will be answered accordingly.

  1. Having reached the conclusion that the Gazette Notice was a “previous exclusive possession act”, his Honour accepted the submission for the Commonwealth that it was unnecessary then to consider the effect of s 18 of the River Murray Waters Act and the characterisation of the 27 Crown grants that had been noted by Mr Bell.  His Honour said that there “simply is no utility in answering those questions, and any answers may be productive of needless confusion”. 

  2. His Honour explained (at [24]) that:

24.   The Gazette notification identified the lands taken with precision.  The claim area was identified by reference to that notification.  On the other hand, the lands mentioned in Schedule B to the agreement are described in very general terms and in a purposive manner.  It is, however, clear from the evidence that Schedule B covers parts of Frenchman’s Creek which were not taken by the Gazette notification. I was not assisted by the parties with any close analysis of the materials in Mr Bell’s status report. Two of the documents of title referred to in the Gazette notification (certificate of title volume 1712 folio 78 and conditional lease no. 4340) covering lands adjoining parts of Frenchman’s Creek, which were not taken by that notification but which fall within the lands described in Schedule B to the agreement, disclose that such lands were neither transferred nor withdrawn from lease. Moreover, Mr Bell’s report shows that the Registrar General continued until well after 31 January 1917 (when s 18 of the River Murray Waters Act commenced) to register dealings in respect of land that was eventually taken by the Gazette notification. Indeed, the Crown grant in respect of the land comprised in certificate of title volume 3035 folio 139 (which was referred to in the Gazette notification) was not made until 23 March 1920 upon satisfaction of the conditions of a conditional purchase. The certificate of title subsequently issued to the South Australian Commissioner of Public Works shows that the land resumed from this grant was the largest individual holding of private land taken from the 27 Crown grants. It would be mischievous to suggest that the 380 acres in question were vested in the State of South Australia on 31 January 1917.

[Emphasis added]

  1. His Honour went on to say in obiter that (at [25]):

25. The operation of s 18 of the River Murray Waters Act in the period between 31 January 1917 and 1 December 1922 may be of importance in some other proceedings, but it is of no significance for present purposes. The vesting on 1 December 1922 extinguished native title. Section 18 is a very curious provision. The River Murray Waters Act was certainly bespoke legislation, but it was s 16 that was utilized to appropriate and resume the lands required for the Lake Victoria Works. I also see no good reason to answer the questions about the 27 Crown grants. As the Commonwealth pointed out, conditional lease no. 4340 granted on 16 April 1886 is ‘a Scheduled interest’ within the meaning of s 23B(2)(c)(i) of the [Native Title] Act. But, again, there is no point in going back beyond the Gazette notification which applied to the very area that is the subject of the native title claim.

  1. On appeal, in Lawson Full Federal Court Proceedings, the Full Court of the Federal Court (Wilcox, Sackville and Finn JJ) said (at [28]):

28.   The effect of these provisions was that upon notification of the appropriation and resumption in the Gazette, the claim area vested in South Australia for an estate in fee simple in possession. In our view, the primary Judge was correct to conclude that the River Murray Waters Agreement of itself had no legislative force and did not confer upon, or reserve to, third parties any proprietary rights in the claim area. Nor was there anything in the legislation to give the Agreement that effect. Consequently, nothing in cl 57 of the Agreement could detract from the fact that the notification vested the fee simple estate in the claim area in the Crown in right of South Australia. It follows that under the general law any native title over the claim area was extinguished and that the Native Title Act and NTA (NSW) [NSW Native Title Act] operated in the manner described by the primary Judge.

The present proceedings

  1. In proceedings commenced in 2014 in the Land and Environment Court of New South Wales (30281/2014), the applicant brought an application pursuant to s 102 of the Public Works Act for an order extending the time in which she might seek compensation in respect of the resumption or appropriation of certain lands at Lake Victoria as a consequence of the notice published under s 42 of the Public Works Act in the New South Wales Government Gazette on 1 December 1922.

  2. The applicant’s claim to compensation is founded (as was her claim in the earlier proceedings) on the basis that her great-grandfather, Daniel MacGregor, was one of the Aboriginal persons who obtained possessory title (title by adverse possession) in 1848 by operation of Imperial statute 9 Geo.3, cl 6, The Crown Suits Act 1769 or Nullum Tempus Act (that is, 60 years after the first European settlement in New South Wales). The applicant claims that in December 1922 her paternal grandmother, Mary Alice Mitchell, as a descendant of Daniel MacGregor, was a successor to that title and therefore had a statutory entitlement to compensation for the compulsory acquisition. The applicant claims that, as a successor to Mary Alice Mitchell, she now holds the statutory entitlement formerly held by Daniel MacGregor and Mary Alice Mitchell (or a share of it).

  3. Biscoe J granted the leave sought by the applicant on 8 December 2014 (Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189 (Lawson LEC Proceedings)). His Honour appointed 31 March 2015 as the date by which the applicant was to serve upon the Constructing Authority and upon the Crown Solicitor the notice in writing referred to in s 102 of the Public Works Act 1912 in respect of the lands at Lake Victoria that had been resumed in 1922 (see at [41]).

  4. On 31 March 2015, pursuant to Biscoe J’s orders, the applicant served on the South Australian Minister for Water and the River Murray, as the Minister was then named, (the first respondent) and the New South Wales Crown Solicitor (for the second respondent) a notice in writing. The notice was entitled “Notice of Claim and Abstract”. It asserted that the applicant was entitled to compensation on the basis that she was a successor to a possessory title which had ripened in 1848 and that, in the alternative, the New South Wales Government had breached its duties as trustee for the interests of the applicant. The document, relevantly, included the following particulars:

Names and description of parties claiming and the nature of their interest

Ms Dorothy Lawson (nee Mitchell), being a descendant of the originating title holders (tenants in common) of a possessory title which ripened in 1848 and which title remained in existence as at 01 December 1922, seeks to be paid directly for her legal entitlement or interest in the 1848 possessory title (as at 01 December 1922) from the “constructing authority” being a legally appropriate portion of the previously unpaid compensation for taking of lands under NSW Public Works Act (1912) and which was payable to her ancestors as at 01 December 1922.

…

[An alternative claim as a beneficiary of a trust which is no longer pursued was then set out]

Situation and description of property

The area of lands and waters covered by the notice of claim is the area, known as Lake Victoria and surrounds, affected by notification published in the NSW Government Gazette No. 166 of 01 December 1922 (see attached).

…

Amount of claim

The amount of the claim as follows is subject to review upon completion of the required valuation to be completed pursuant to NSW Public Works Act (1912).

Land and waters: One seventh of one twelve [sic] of one fiftieth of the share of outstanding compensation, as at 01 December 1922, due to originating tenants in common or their ancestors plus yearly interest on the claimed compensation ... or in the alternative (given the death of many of the originating tenants in common with no successors or ancestors to inherit) pursuant to indigenous descendency of the Tenants in Common One [sic] seventh of one twelve of one tenth of the share of outstanding compensation ...

  1. The Notice of Claim and Abstract included amongst other matters, a list of “all known named originating tenants in common” comprising 25 named individuals or pairs or their parents. The Notice of Claim and Abstract explained the applicant’s succession as follows:

Succession from originating tenant in common to those alive as at 1922:

…

Daniel McGregor born 1836 died Kapunda 1906 (“Aboriginal” and “usual place of residence Lake Victoria”)

Mary Alice (or Ellen or Helen) Mitchell (nee McGregor) born (Pooncarrie) 1852 died 1956 married Harry Mitchell Snr born (Pooncarrie) 1846 died 1939

Harry Mitchell Jnr born 1909 died 1950 married Myrtle Johnson died approximately 1955/56 (unrelated to direct area but related to Barkindji)

Dorthy [sic] Lawson (nee Mitchell) born 1936

[There then followed particulars including uncertainty as to the existence of siblings of Daniel McGregor.]

  1. On 23 July 2015, the applicant commenced what has now become the present proceeding as an Application Class 3 in the Land and Environment Court of New South Wales, in which she sought, among other relief, the following order:

1.    Compensation be paid to the Applicant, at an average rate per acre of previously resumed freehold titles at Lake Victoria and which titles were accordingly valued in 1922/23, of an amount as detailed in the Notice of Claim and Abstract in respect of the lands at Lake Victoria resumed in 1922.

  1. As I have adverted to, the applicant now seeks, by the amended notice of motion filed 9 August 2019, to amend the application originating these proceedings (proposed order 1), or to serve an amended or further Notice of Claim and Abstract (proposed orders 2-5) to include claims based on the effect of the notification published on 1 December 1922 on native title rights. (The applicant also now abandons the ground based on breach of trust and adds claims for interest and costs.)

  2. Meanwhile, the proceedings in the Land and Environment Court of New South Wales were transferred to this Court. On 3 October 2019, I granted leave for the separate determination of the preliminary questions (in the form that had been agreed between the parties), as set out above. (Pausing here, it appears that the claim was filed on 23 July 2015 (cf question 1, which puts the date of filing at 1 April 2015) but nothing turns on this.)

Relevant provisions of the Public Works Act

  1. The Public Works Act has now been substantially amended. However, the relevant provisions, as they stood at the time, for the purpose of this application are as follows.

  2. Section 42 of the Public Works Act provides that:

42.   For the purpose of carrying out any authorised work, if the Governor directs that any land required for such work shall be taken under this Division of this Act, he may, by notification to be published in the Gazette and in one or more newspapers published or circulated in the police district wherein is situated the land the subject of such notification, declare that the land described in such notification has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed.

  1. Upon publication of the Gazette Notice, the lands described in the notice are, by force of statute, vested “in fee simple” in the Constructing Authority (see s 43 of the Public Works Act).

  2. Section 45 of the Public Works Act provides that:

45.   (1)   The estate and interest of every person entitled to lands resumed under this Division of this Act or any portion thereof and whether to the legal or equitable estate therein shall by virtue of this Act be deemed to have been as fully and effectually conveyed to the Constructing Authority as if the same had been conveyed by the persons legally or equitably entitled thereto by means of the most perfect assurances in the law.

(2)   Every such estate and interest shall, upon the publication of such notification as aforesaid be taken to have been converted into a claim for compensation in pursuance of the provisions hereinafter contained.

(3)   Every person shall upon asserting his claim hereinafter provided and making out his title in respect of any portion of the said resumed lands be entitled to compensation on account of such resumption in manner hereinafter provided.

  1. Section 45(2) operates so as to convert an estate or interest in land to a statutory entitlement to make a “claim’’ for “compensation in pursuance of the provisions hereinafter contained” (i.e., “in pursuance of” the provisions in Part VII of the Public Works Act). The entitlement to compensation in s 45(3) is premised on an applicant asserting a claim as provided for under Part VII.

  2. Division 1 of Part VII of the Public Works Act establishes the procedure to be followed to advance the statutory entitlement to make a claim where land is taken or acquired by notification in the Gazette under Part V.

  3. Section 101 of the Public Works Act establishes a statutory entitlement to receive “such sum of money by way of compensation for the land of which they have been deprived under this Act as shall be agreed or otherwise ascertained under the provisions of this Division”.

  4. Section 102 provides that:

102.   Every person claiming compensation in respect of any land resumed under any such notification, or in respect of any work or other matter done under the authority of this Act where there has been any such notification shall, within ninety days from the publication of such notification, or at any time afterwards within such time as a Judge of the Supreme Court shall, upon the application and at the cost of the claimant, appoint in that behalf, serve upon the Constructing Authority and upon the Crown Solicitor a notice in writing setting forth -

(a)    the nature of the estate or interest of the claimant in such land, together with an abstract of his title …

  1. Section 103 provides that:

103.   Within sixty days after the receipt of every such notice of claim by the Crown Solicitor he shall forward the same, together with his report thereon, to the Constructing Authority, who shall thereupon (unless no prima facie case for compensation is disclosed) cause a valuation of the land, or of the estate or interest or the claimant therein, to be made in accordance with the provisions of this Act, and shall inform the claimant as soon as practicable of the amount of such valuation by notice in the form of the [Schedule].

  1. Section 104 provides that:

104(1).    If within ninety days after the service of notice of claim the claimant and the Constructing Authority do not agree as to the amount of compensation, the claimant may institute proceedings in the Supreme Court, in the form of an action for compensation, against the Constructing Authority as nominal defendant.

Provided that, with the consent in writing of the Constructing Authority and the claimant, any such action may be so tried at any time [to be mentioned in such consent] before the expiration of ninety days from service of the notice of claim for compensation, but not within fourteen days from service of the notice of valuation on such claimant.

(2).    Any such action may be tried before a Judge of the said court or in any circuit court and a special jury of four persons.

Provided that upon application either of the Constructing Authority or of the claimant a special jury of twelve may be summoned for the trial of such action.

Relevant principles of statutory construction

  1. The modern approach to statutory construction, as has been made clear by the High Court of Australia, is that one starts with the text of the relevant legislation but that the statutory text must be considered in its context (which context may include legislative history and extrinsic materials) and with reference to its purpose (see, for example, the approach adopted in Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 at [21] per French CJ, Kiefel, Keane, Nettle and Gordon JJ; and the well-known articulation of principle in: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ; CIC Insurance Ltdv Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [33]-[34] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [14] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan, and Kiefel JJ; and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14] (per Kiefel CJ, Nettle and Gordon JJ).

  2. In SZTAL, Kiefel CJ, Nettle and Gordon JJ summarised the position as follows (at [14]):

14.   The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense [citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2]. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

  1. The purpose for which extrinsic material can be used was addressed by the majority of the High Court in Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [43]-[44] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); and more recently considered in The Queen v A2 [2019] HCA 35 at [40], [58] (per Kiefel CJ and Keane J; Nettle and Gordon JJ agreeing generally).

The Separate Questions

Question 1

  1. As has already been set out above, question 1 is as follows:

1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917?

  1. The parties’ submissions may be summarised as follows.

Applicant’s submissions

  1. The applicant says that question 1 is directed to a determination of whether s 18 of the River Murray Waters Act created a fee simple estate “in the true common law sense”. The applicant submits that, on the proper construction of s 18, the interest in land vested by s 18 “is not a common law estate in fee simple but, rather, a sui generis bundle of statutory rights and powers which serve to give effect to the scheme of the [River Murray Waters Act] by enabling construction of the works the subject of that scheme.” It is said in this context that the resumption of the land the subject of the scheme was achieved by the Gazette Notice made under the Public Works Act which took effect on 1 December 1922.

  2. As to the use of the phrase “an estate in fee simple” in s 18 of the River Murray Waters Act, the applicant points out that the Crown does not hold land from itself. Rather, the applicant submits that a fee simple interest is typically created by instrument of grant, rather than by statute, and contains reservations and exceptions, and that, under feudal principle, fee simple is held from the Crown as the ultimate lord.

  3. The applicant relies heavily on the common law presumption against legislative deprivation of proprietary rights without compensation. The applicant says that, if the respondents’ submission (that the land the subject of the claim was vested in South Australia by operation of s 18 of the River Murray Waters Act) were to be upheld, then any resumption of proprietary rights and interests would be without compensation (as the River Murray Waters Act provides for compensation only for damage occasioned by the construction or maintenance of works). Reference is made to Clissold v Perry (1904) 1 CLR 363; [1904] HCA 12 at 373, where Griffith CJ (considering the position of a person who had been in adverse possession for less than the requisite limitation period) said (in a statement subsequently approved in other cases such as R&R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at [42] per French CJ; Young v Owners – Strata Plan No 3529 (2001) 54 NSWLR 60; [2001] NSWSC 1135 at [19] per Santow J, as his Honour then was) that:

… it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest.

  1. Reference is also made to ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51, where Heydon J said (at [75]):

There is a common law rule of statutory interpretation requiring that “clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation” [Mabo V Queensland [No 2] (1992) 175 CLR 1 at 111 per Deane and Gaudron JJ]. According to Griffith CJ, one of the framers of the Constitution, though not of s 51(xxxi), the necessary intent had to be “expressed in unequivocal terms incapable of any other meaning” [Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 563 per Griffith CJ and Rich J]. There is also a common law rule of statutory construction that an “executive power to deprive a citizen of his property by compulsory acquisition should be construed as being confined within the scope of what is granted by the clear meaning or necessary intendment of the words by which it is conferred” [Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 201 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ].

  1. The applicant notes that the presumption was applied by Kitto and Owen JJ in CJ Burland Pty Ltd v Metropolitan Meat IndustryBoard (1968) 120 CLR 400; [1968] HCA 77, where Kitto J (at 406) (with whom Owen J agreed) referred to “the firmly established rule of law that a statute will not be read as authorizing the expropriation of a subject’s goods without payment unless an intention to do so be clearly expressed”.

  2. As to the statutory purpose and context of the River Murray Waters Act, the applicant says that, in essence, the River Murray Waters Act contains the necessary provisions to facilitate the various constructions and water management projects that the Agreement (contained in the schedule to the Act) aimed to achieve. The applicant contends that s 18 of the River Murray Waters Act was enacted to give effect to the provision of the Agreement which made clear that the vesting of the lands described in Schedule B was for the purpose of undertaking the Lake Victoria Works (referring to cl 55 of the Agreement).

  3. The applicant says that it is clear from cl 55 that the transfer of Lake Victoria to the State of South Australia was subject to conditions and that it was done for the purpose of the construction and operation of water storage. The applicant submits that, given that the construction of the Lake Victoria Works would take many years, it was not a purpose of the Agreement that private rights in land would be immediately extinguished. Rather, it is said, those private rights were appropriated by the 1922 Gazette Notice (there being a right of compensation in respect of that resumption).

  4. The applicant argues that the fact that the resumption of private interests was not the purpose of the Agreement is reflected in the terms of the River Murray Waters Act, noting that it provides compensation for damage by works (s 19) but not compensation for the deprivation of proprietary rights. It is said that ss 15(3) and 16(b) contemplate that land required to complete works in the first place must be appropriated, resumed or purchased and that this must take place “under and subject to” the Public Works Act. (The applicant attaches particular significance to the last of these requirements.)

  5. The applicant points to the fact that s 18 limits any “vesting” to “[t]he lands mentioned in Schedule B”, and that the final sentence of Schedule B conditions all land vested to that which is “sufficient for all purposes of access to and use and enjoyment of the Lake Victoria works” (a reference, the applicant contends, to the completed works).

  6. Insofar as the respondents rely on the ordinary meaning of the word “hereby” to assert that the lands described in Schedule B were to be vested by force of the River Murray Waters Act without more, the applicant says that reliance cannot be placed on the text alone (context being recognised as integral to determining the correct meaning – citing Country Carbon Pty Ltd v Clean Energy Regulator (2018) 267 FLR 126; [2018] FCA 1636 at [110] per Mortimer J). The applicant submits that the extrinsic material relied upon by the respondents aids her construction of s 18 of the River Murray Waters Act.

  7. In particular, the applicant argues that the passages relied upon by the respondents in the second reading speech to the Bill that subsequently became the River Murray Waters Act were made in the context of discussing the scheme arising from the Agreement, including the role the States would assume as constructing authorities, reflecting the interconnectedness of the River Murray Waters Act with the Public Works Act. It is said that those passages do not specify that the land would vest in fee simple once the River Murray Waters Act came into force.

  8. The applicant points to the reference by the Minister to giving South Australia “the land which contains the lake”; and says that the following paragraphs clarify this area to mean “30,000 acres comprising the bed of the lake” (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 February 1915 at 2364). The applicant notes that, shortly after, the Minister stated that “South Australia also gets the ground contained in the Lake Victoria storage” (supra, p 2364). The applicant submits that this statement refers to the area required for the scheme in the vicinity of Lake Victoria that does not comprise of the bed of Lake Victoria and that, taken together, both of those descriptions correspond with the description in Schedule B to the River Murray Waters Act which describes the areas to be vested in South Australia.

  9. It is noted that Schedule B refers to land that will be identified at a later date insofar as it includes “also so much of the banks and foreshores of the said lake and watercourses, and of the land adjoining thereto, as shall be sufficient for all purposes of access to and use and enjoyment of the Lake Victoria works”. The applicant submits that, reading Schedule B in its entirety, it is impossible for the area referred to in Schedule B to vest in fee simple upon commencement of the River Murray Waters Act.

  10. The applicant thus argues that s 18, when read with Schedule B, must be construed as a deeming provision only; and that it does not reflect any legislative intention to override the need for a separate “appropriation, resumption or purchase” of land (which, it says, occurred with the 1922 Gazette Notice).

  11. As to the interaction of s 18 of the River Murray Waters Act with existing interests at the time, the applicant says that, within the area purportedly vested in fee simple, there were existing interests including: conditional leaseholds granted pursuant to the Crown Land Acts 1884 (NSW); Western Lands Lease granted pursuant to the Western Lands Act 1901 (NSW); and there were freehold grants in fee simple which had been granted pursuant to the Crown Lands Alienation Act 1861 (NSW).

  12. The applicant notes that there are no provisions in the Crown Lands Act 1884 (NSW), the Crown Lands Consolidation Act 1913 (NSW), or the Western Lands Act 1901 (NSW) for the assignment or transfer of the Crown’s interest in land subject to any grants. It is noted that Crown leases and other interests are peculiar to the Crown in that they invariably reserve to the Crown rights and interests that cannot be exercised other than by the Crown. The applicant says that if the vesting occurred in 1917 (as contended by the respondents), then each of those interests issued by the Crown in respect of the lands and waters purportedly vested in the South Australia must have been terminated (without compensation); and it is submitted that this could not have been the statutory intent (see, for example, the argument put at T 26.7). Nor, it is said, could it have been the intent of the legislature to grant a fee simple estate to the State of South Australia in which it assumed the role of the State of New South Wales or the Minister for Lands as the Crown. It is submitted that the absence of any provision facilitating such an outcome is fatal to the respondents’ position.

Determination as to application to amend the claim

  1. Had I reached a different conclusion in relation to the questions for separate determination, I would have permitted the amendment sought to be made of the present claim and I would have made an order in terms of order 1 as sought in the amended notice of motion. I would have done so because I am of the view that the grant of leave by Biscoe J was not limited to the particular ground that was raised at that time in relation to the proposed claim (it being contemplated that the notice to the Constructing Authority would specify the nature and extent of the interest claimed), and because I am of the view that issues as to the alleged incompatibility of the respective claims and other such objections would more appropriately be dealt with in the substantive proceedings (as would any argument as to the applicant’s authority to commence the proceedings as a representative suit). I would not have been persuaded that the applicant should be precluded from amending her compensation claim because of doubts at this stage as to issues of that kind.

  2. Further, I would have concluded that the statutory mandate to facilitate the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW)) warranted the grant of leave to amend; that issues as to the applicant’s authority to represent members of the representative group could be dealt with in the course of directions made for the expeditious conduct of the proceedings; and that issues as to inconsistency in the relief claimed (or complaints as to the unconfined nature of the relief claimed) could be dealt with during the hearing, if not before.

  3. As it is, however, the amendment application must fail because of the conclusions I have reached as to the questions for separate determination. In those circumstances, no claim for compensation under the Public Works Act is maintainable because no relevant private property right was resumed in 1922.

Conclusion

  1. For the above reasons, the separate questions will be answered in the manner for which the respondents have contended. The applicant’s amended notice of motion should be dismissed with costs. As it was common ground that the applicant’s claim for compensation would not be maintainable if the questions were answered in the manner for which the respondents contended, there should be an order for the dismissal of the proceedings accordingly.

Orders

  1. Therefore, I make the following orders:

  1. The questions for determination be answered as follows:

Q1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917?

A.   Yes

Q2.   If the answer to question 1 is “Yes”:

a. is the consequence of the vesting by the RMW Act that any and all interests in the land to which s 18 [of] the RMW Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the RMW Act? and

b. was the vesting of the land by the RMW Act a ‘previous exclusive possession act’ for the purposes of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?

A.   a.   Yes

b.   Yes

  1. Dismiss the applicant’s amended notice of motion filed 9 August 2019 with costs.

  2. Dismiss the proceedings with costs.

**********

Decision last updated: 10 March 2020

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Cases Citing This Decision

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Lawson v Minister for Environment and Water [2022] NSWLEC 122
Lawson v Minister for Environment and Water [2022] NSWLEC 122