Lawson v Minister Assisting the Minister for Natural Resources(Lands) [2004] FCAFC 308 (19 November 2004)

Last Updated: 23 November 2004

FEDERAL COURT OF AUSTRALIA

Lawson v Minister Assisting the Minister for Natural Resources (Lands)

[2004] FCAFC 308

NATIVE TITLE – extinguishment of native title rights and interests – vesting of land in the Crown for an estate in fee simple – whether `previous exclusive possession act´


Native Title Act 1993 (Cth) ss 23B, 23C, 23E, 84A
River Murray Waters Act 1915 (Cth)
Native Title (New South Wales) Act 1994 (NSW) s 20
River Murray Waters Act 1915 (NSW) ss 14, 16, 18
Public Works Act 1912 (NSW) ss 18, 34, 42, 43, 44, 45


Ward v Western Australia [2002] HCA 28; (2002) 213 CLR 1 applied

















DOROTHY LAWSON and Ors on behalf of MEMBERS OF THE BARKANDJI (PAAKANTYI PEOPLE) v MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) and Ors
NSD 317 of 2004

DOROTHY LAWSON and Anor on behalf of MEMBERS OF THE BARKANDJI (PAAKANTYI PEOPLE) v MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) and Ors
NSD 316 of 2004

WILCOX, SACKVILLE and FINN JJ
SYDNEY
19 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 317 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON AND SHEILA KIRBY ON BEHALF OF MEMBERS OF THE BARKANDJI (PAAKANTYI PEOPLE) APPELLANTS
AND:	MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) FIRST RESPONDENT NEW SOUTH WALES NATIVE TITLE SERVICE LTD SECOND RESPONDENT STATE OF SOUTH AUSTRALIA THIRD RESPONDENT STATE OF VICTORIA FOURTH RESPONDENT MURRAY DARLING BASIN COMMISSION FIFTH RESPONDENT WESTERN MURRAY IRRIGATION LIMITED SIXTH RESPONDENT ROBERT CHARLES DUNCAN SEVENTH RESPONDENT LIMBRA PASTORAL CO PTY LTD EIGHTH RESPONDENT PETER JAMES MIDDLETON TENTH RESPONDENT COLIN MANSELL ELEVENTH RESPONDENT BERNARD HARDING BOOTH AND SHARYN ELIZABETH BOOTH OTHER RESPONDENTS COMMONWEALTH OF AUSTRALIA INTERVENER
JUDGES:	WILCOX, SACKVILLE and FINN JJ
DATE OF ORDER:	19 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 316 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DOROTHY LAWSON AND PHILLIP LAWSON ON BEHALF OF MEMBERS OF THE BARKANDJI (PAAKANTYI PEOPLE)
AND:	MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT NEW SOUTH WALES NATIVE TITLE SERVICE LTD THIRD RESPONDENT
JUDGES:	WILCOX, SACKVILLE and FINN JJ
DATE OF ORDER:	19 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

3. The appeal be dismissed.
4. The appellants pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 317 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON AND SHEILA KIRBY ON BEHALF OF MEMBERS OF THE BARKANDJI (PAAKANTYI PEOPLE) APPELLANTS
AND:	MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) FIRST RESPONDENT NEW SOUTH WALES NATIVE TITLE SERVICE LTD SECOND RESPONDENT STATE OF SOUTH AUSTRALIA THIRD RESPONDENT STATE OF VICTORIA FOURTH RESPONDENT MURRAY DARLING BASIN COMMISSION FIFTH RESPONDENT WESTERN MURRAY IRRIGATION LIMITED SIXTH RESPONDENT ROBERT CHARLES DUNCAN SEVENTH RESPONDENT LIMBRA PASTORAL CO PTY LTD EIGHTH RESPONDENT PETER JAMES MIDDLETON TENTH RESPONDENT COLIN MANSELL ELEVENTH RESPONDENT BERNARD HARDING BOOTH AND SHARYN ELIZABETH BOOTH OTHER RESPONDENTS COMMONWEALTH OF AUSTRALIA INTERVENER
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 316 of 2004

BETWEEN:	DOROTHY LAWSON AND PHILLIP LAWSON ON BEHALF OF MEMBERS OF THE BARKANDJI (PAAKANTYI PEOPLE)
AND:	MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT NEW SOUTH WALES NATIVE TITLE SERVICE LTD THIRD RESPONDENT

JUDGES:	WILCOX, SACKVILLE and FINN JJ
DATE:	19 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

THE PROCEEDINGS

1 This is an appeal from a judgment of a Judge of the Court delivered on 16 February 2004 ([2004] FCA 165). In that judgment, his Honour made orders in consequence of reasons for judgment delivered by him on 17 October 2003 ([2003] FCA 1127).

2 The judgments were given in two proceedings under the Native Title Act 1993 (Cth) (‘Native Title Act’) which were heard together. The first was an application for a native title determination over certain land in New South Wales (‘the claim area’) made on behalf of the Barkandji People. The second was a compensation application under the Native Title Act, also made on behalf of the Barkandji People, in respect of the claim area.

3 It is now common ground that the claim area comprises land which, by notification published in the New South Wales Government Gazette (‘the Gazette’), No 166 of 1 December 1922, was appropriated and resumed under the Public Works Act 1912 (NSW) (‘Public Works Act’). The appropriation and resumption was for the purpose of constructing the Lake Victoria Works, which formed part of extensive works on the Murray-Darling Rivers system.

4 The principal issue before the primary Judge was whether the notification in the Gazette, which vested the claim area in South Australia for a fee simple estate, extinguished any previously subsisting native title rights and interests over the claim area. That issue was the subject of a series of questions that his Honour directed should be heard and determined before any further trial in the proceedings.

5 The separate questions were heard on 1 and 21 May 2002. The present appellants (applicants in the proceedings at first instance) did not appear. The respondents appeared and argued that any native title rights and interests over the claim area had been extinguished. (The Attorney-General for the Commonwealth intervened in the claimant application in the interests of the respondents and the Commonwealth itself was a party to the compensation claim. The Commonwealth is a party to the appeal in the claimant application by virtue of s 84A(3) of the Native Title Act.) The primary Judge had the benefit of a contradictor, as the New South Wales Native Title Services Ltd (‘NTS’) appeared by senior counsel to argue that native title over the claim area had not been extinguished.

6 On 8 August 2002, the High Court decided Ward v Western Australia [2002] HCA 28; (2002) 213 CLR 1. The parties lodged further written submissions and his Honour delivered judgment on 17 October 2003. The only order made on that occasion was that the proceedings be stood over to a date to be fixed for the purpose of making orders to give effect to the published reasons for judgment.

7 On 16 February 2004, following a further hearing, the primary Judge made orders in both proceedings. The answers to the separate questions included the following:

‘Extinguishment of native title in the entire claim area

4.

Question: Was there, by notification in the NSW Government Gazette on 1 December 1922, under the Public Works Act 1912 (NSW), an appropriation of so much of the area covered by the Lake Victoria Compensation Application that was Crown land and the resumption of so much of the area covered by the application that was not Crown land and the vesting of such acquired lands for an estate in fee simple in the State of South Australia?

Answer: Yes.

5.	Question: If the answer to question 4 is yes – is the act described in question 4 a "previous exclusive possession act" within the meaning of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?

Answer: Yes.

...
Effect of grants

10.	Question: In respect of each of the acts referred to in [question 4] – if the act is a "previous exclusive possession act", did the act extinguish all native title rights and interests in respect of the area of land or waters to which it applied otherwise than under the Native Title Act 1993 (Cth)?

Answer: By operation of ss 23B and 23E of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW) the vesting of the acquired lands referred to in question 4 extinguished any native title in relation to such lands. Otherwise it is inappropriate to answer this question.’

8 In view of the answers to these questions, his Honour made orders that:

• native title does not exist in the claim area; and
• no compensation is payable to the present appellants in respect of the claim area.

9 On the appeal, the appellants appeared by videolink, without legal representation. At their request, we granted leave to a non-legally qualified person, Mr Dengate, to make submissions on their behalf. (Mr Dengate had appeared by leave at the hearing before the primary Judge on 16 February 2004.) The NTS, although named as a respondent to the appeal, did not appear but filed a submitting appearance. Five separate respondents, or groups of respondents, filed written submissions urging that the appeal be dismissed.

BACKGROUND

10 On 9 September 1914, an agreement was entered into by the Prime Minister and the Premiers of New South Wales, Victoria and South Australia (‘River Murray Waters Agreement’). The River Murray Waters Agreement provided for the establishment of the River Murray Commission and the construction of extensive works on the Murray-Darling systems including the Lake Victoria Works. The text of the Agreement is reproduced, among other places, in the First Schedule to the River Murray Waters Act 1915 (NSW) (‘RMW Act (NSW)’).

11 The RMW Act (NSW) commenced on 31 January 1917 and the River Murray Waters Act 1915 (Cth) commenced on the same date. Section 18 of the RMW Act (NSW) provided as follows:

‘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.’

Schedule B to the River Murray Waters Agreement described the land as follows:

‘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.’

12 The Gazette included a notification under the Public Works Act. The notification declared that

‘... 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.’

13 Two pieces of land were described in the notification. One, comprising 32,042 acres, included Lake Victoria and parts of two water courses connecting the River Murray with the Lake, together with the banks and foreshores of the Lake and watercourses. The second, comprising 4,409 acres, included part of one of the watercourses and the banks and foreshores of the watercourse. The pieces of land were precisely described by metes and bounds.

THE NATIVE TITLE LEGISLATION

14 It is not necessary to outline the legislation in detail. So far as the Native Title Act is concerned it is enough to refer to the relevant provisions of ss 23B and 23E. Section 23B provides as follows:

‘(1) This section defines previous exclusive possession act.

(2) An act is a previous exclusive possession act if:

(a) it is valid (including because of Division 2 or 2A of Part 2); and
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following:

(i)	...;
(ii)	a freehold estate;

...

(9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:

(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters;

...’

15 Section 23E of the Native Title Act provides that subject to certain conditions (which have been satisfied), the law of a State or Territory may make provision to the same effect as s 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

16 Section 20 of the Native Title (New South Wales) Act 1994 (NSW) (‘NTA (NSW)’) provides as follows:

‘If an act is a previous exclusive possession act under section 23B(2) ... of the Commonwealth Native Title Act and is attributable to the State:

(a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and
(b) the extinguishment is taken to have happened when the act was done.’

THE PRIMARY JUDGMENT

17 The respondents argued before the primary Judge that any native title over the claim area had been extinguished by the vesting of the claim area in South Australia by s 18 of the RMW Act (NSW). His Honour considered it unnecessary to address this argument because in his view it was quite clear that the notification in the Gazette constituted a ‘previous exclusive possession act’ within the meaning of s 23B(2) of the Native Title Act and that by s 20(1) of the NTA (NSW) the notification extinguished any native title in relation to the claim area.

18 The notification was a ‘previous exclusive possession act’ because it:

• was valid (s 23B(2)(a));
• took place before 23 December 1996 (s 23B(2)(b));
• consisted of the grant or vesting of a freehold estate (s 23B(2)(c)(ii); and
• the vesting in the Crown in right of South Australia was valid and effective to extinguish native title under the general law (s 23B(9C)(a)).

19 Since the previous exclusive possession act was attributable to the State of New South Wales, it extinguished any native title in relation to the claim area as from the date of the act: NTA (NSW), s 20(1).

20 NTS acknowledged, as it had to, that a vesting under New South Wales law of a fee simple estate in the claim area in the Crown in right of South Australia would have been effective to extinguish native title under the general law: Western Australia v Ward, per Gleeson CJ, Gaudron, Gummow and Hayne JJ, at 134 [204]. NTS attempted to avoid this difficulty by arguing that cl 57 of the River Murray Waters Agreement ‘qualified’ the vesting of the fee simple estate in the claim area in South Australia. Clause 57 provided as follows:

‘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 other stock, 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 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...’

21 The primary Judge rejected this contention on two grounds. First, it failed to come to grips with the central proposition, reaffirmed in Western Australia v Ward, that the vesting of a fee simple estate in the Crown extinguished any native title that previously existed over the relevant land. Secondly, 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.’

REASONING

22 Mr Dengate presented the appellants’ arguments on the appeal in a helpful and careful manner. In substance he essentially repeated the contention founded on cl 57 of the River Murray Waters Agreement that the primary Judge rejected.

23 As his Honour noted, s 14 of the RMW Act (NSW) provided that subject to the Act and the Agreement, the construction of any works referred to therein was to be an authorised work for the purposes of the Public Works Act. Section 14 also provided that s 34 of the Public Works Act, which required a resolution of the Legislative Assembly to authorise work, was not to apply to such works.

24 Section 16 of the RMW Act (NSW) provided that for the purpose of construction and control pursuant to the Act and Agreement of works 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 for such works.’

25 Section 42 of the Public Works Act empowered the Governor, for the purpose of carrying out any ‘authorised work’, by notification published in the Gazette to declare that the land described in such notification had been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed. Section 43 provided that upon publication of the notification the land should forthwith be vested in the ‘Construction Authority’ for the purpose of the Act:

‘for an estate in fee-simple in possession, freed and discharged from all trusts, obligations, estates, interests ... or other easements whatsoever’.

26 Section 44 was as follows:

‘where the land taken is Crown land at the date of such publication ... the effect of such publication shall be ... to vest the said land ... in the Constructing Authority for the purposes mentioned and for the estate limited in [s 42]’.

27 Section 45(1) stated that the estate and interest of every person entitled to lands resumed under these provisions were deemed to have been conveyed to the Constructing Authority. By s 45(2), every such estate and interest was taken to have been converted into a claim for compensation.

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) operated in the manner described by the primary Judge.

29 We should add that even if cl 57 of the Agreement could somehow have operated to preserve pre-existing property rights, it could not have preserved native title rights and interests over the claim area. Clause 57 referred to rights ‘lawfully exercisable by an occupier of land on the bank of the ... lake’ to use the water for ‘domestic purposes or for watering cattle ... or for gardens’. This language was not apt to encompass any native title rights and interests that might then have been in force.

CONCLUSION

30 Both appeals must be dismissed, with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Sackville & Finn.

Associate:

Dated: 19 November 2004


NSD 317 of 2004

The appellants appeared in person, assisted by M Dengate.
Counsel for the First and Fourth Respondent:	S Lloyd
Solicitor for the First Respondent:	Crown Solicitor for the State of New South Wales
The Second Respondent filed a notice of submitting appearance.
Counsel for the Third Respondent:	EJ Kourakis QC with A Moll
Solicitor for the Third Respondent:	Crown Solicitor for the State of South Australia
Solicitor for the Fourth Respondent:	Victorian Government Solicitor
The Fifth Respondent filed a notice of submitting appearance.
Counsel for the Sixth, Tenth and Eleventh Respondents:	G Hiley QC with T Jowett
Solicitor for the Sixth Respondent:	Suzanna Sheed & Associates
Solicitor for the Tenth and Eleventh Respondents:	JG Thompson
Counsel for the Seventh, Eighth and Other Respondents:	PM Lane
Solicitor for the Seventh, Eighth and Other Respondents:	The Bruce & Stewart Commercial Practice Pty Ltd
Counsel for the Commonwealth:	M Perry
Solicitor for the Commonwealth:	Australian Government Solicitor
Date of Hearing:	16 November 2004
Date of Judgment:	19 November 2004

NSD 316 of 2004

The appellants appeared in person, assisted by M Dengate.
Counsel for the First Respondent:	S Lloyd
Solicitor for the First Respondent:	Crown Solicitor for the State of New South Wales
Counsel for the Second Respondent:	M Perry
Solicitor for the Second Respondent:	Australian Government Solicitor
The Third Respondent filed a notice of submitting appearance.
Date of Hearing:	16 November 2004
Date of Judgment:	19 November 2004