Lawson v Minister for Environment and Water

1. [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. [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. [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. [4]

   The questions to be separately determined are as follows:

Background

1. [5]

   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. [6]

   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:

3. [7]

   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”:

4. [8]

   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.

5. [9]

   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).

6. [10]

   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:

7. [11]

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

8. [12]

   Schedule B described the said lands in the following terms:

9. [13]

   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.

10. [14]

    Clauses 56 and 57 of the Agreement provided:

11. [15]

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

12. [16]

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

13. [17]

    “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”.

14. [18]

    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:

15. [19]

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

16. [20]

    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”).

17. [21]

    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)).

18. [22]

    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).

19. [23]

    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]).

20. [24]

    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.)

21. [25]

    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:

22. [26]

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

23. [27]

    At [11], his Honour said that:

24. [28]

    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).

25. [29]

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

26. [30]

    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).

27. [31]

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

28. [32]

    His Honour concluded (at [22]) that:

29. [33]

    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”.

30. [34]

    His Honour explained (at [24]) that:

31. [35]

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

32. [36]

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

33. [37]

    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.

34. [38]

    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).

35. [39]

    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]).

36. [40]

    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:

37. [41]

    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:

38. [42]

    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:

39. [43]

    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.)

40. [44]

    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.)

41. [45]

    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.

42. [46]

    Section 42 of the Public Works Act provides that:

43. [47]

    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).

44. [48]

    Section 45 of the Public Works Act provides that:

45. [49]

    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.

46. [50]

    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.

47. [51]

    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”.

48. [52]

    Section 102 provides that:

49. [53]

    Section 103 provides that:

50. [54]

    Section 104 provides that:

51. [55]

    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 Ltd v 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).

52. [56]

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

53. [57]

    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

1. [58]

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

2. [59]

   The parties’ submissions may be summarised as follows.

3. [60]

   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.

4. [61]

   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.

5. [62]

   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:

6. [63]

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

7. [64]

   The applicant notes that the presumption was applied by Kitto and Owen JJ in CJ Burland Pty Ltd v Metropolitan Meat Industry Board (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”.

8. [65]

   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).

9. [66]

   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).

10. [67]

    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.)

11. [68]

    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).

12. [69]

    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.

13. [70]

    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.

14. [71]

    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.

15. [72]

    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.

16. [73]

    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).

17. [74]

    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).

18. [75]

    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.

19. [76]

    Further, it is submitted that even if (which the applicant does not concede) a fee simple estate was granted to the State of South Australia, the vesting of that fee simple was subject to or conditional upon all existing rights and interests first having been resumed under the Public Works Act.

20. [77]

    As noted above, the applicant places weight on the indefinite boundaries of the land which, on the respondents’ construction of the River Murray Waters Act, vested in fee simple by s 18 of that Act. It is noted that Schedule B to the Agreement does not describe a fixed area of land; rather, it refers to the “area covered by water” and the area “sufficient for all purposes of access to and use and enjoyment of the Lake Victoria [W]orks”. It is said that the areas so described are inherently subject to change. The applicant argues that, on the construction proposed by the respondents, the owners of land adjacent to Lake Victoria and land that may be affected by the Lake Victoria Works would be left uncertain as to whether their land had been vested in South Australia.

21. [78]

    The applicant further notes that, after the land had (on the respondents’ construction) vested in South Australia in fee simple, the New South Wales Government entered into dealings with the land inconsistent with the fee simple having vested in South Australia (reference being made to the grant of a title in fee simple to Norman Charles Scadding (Vol 3035 Fol 139, on 23 March 1920) (see the affidavit affirmed 19 December 2016 by Andrew Dean Bell).

22. [79]

    The applicant says that Schedule B must be read as a whole. It is noted that Schedule B to the Agreement contains two portions of text, separated by a semicolon. The applicant submits that Schedule B should not be read severally, such that it represents two discrete areas; rather, that the two portions are so connected as to require them to be read together.

23. [80]

    It is said that such a reading accords with the object of the River Murray Waters Act and the Agreement, in that it facilitates the construction and operation of the Lake Victoria Works. Further, it is said that the construction is supported by the observations of Katz J in Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168; [2000] FCA 478 (at [83]), as follows:

24. [81]

    The applicant submits that the segregation of the two portions of Schedule B (i.e., by construing the words before the semi-colon separately from those following the semi-colon) risks distortion of the true meaning of the text by discounting its context. The applicant points to the observation of Gibbs J in Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1971) 124 CLR 97 at 105; [1971] HCA 17, in this regard, that “[t]he meaning of the phrase “same as”, like that of any other ambiguous expression, depends on the context in which it appears”.

25. [82]

    It is further noted that, as a general principle of construction, it is undesirable to construe portions of a provision in isolation from each other. The applicant points to the statement of Lord Halsbury LC in The Mersey Docks and Harbour Board v Henderson Brothers (1888) 13 App Cas 595 (at 599-600) that “[i]t certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed”.

26. [83]

    The applicant thus argues that, read together, the two components of Schedule B of the Agreement represent “an inherently variable portion of land” and that this contradicts a supposed statutory intention that the reference to “fee simple” in s 18 of the River Murray Waters Act is an unburdened fee simple estate. The ambiguity in the description of the boundaries of the land described in Schedule B to the Agreement is said to support the construction of s 18 as meaning something other than the vesting of a fee simple estate as that would ordinarily be understood (see T 24.38ff).

27. [84]

    As noted earlier, the applicant submits that s18 should be construed so as to create a “unique bundle of statutory rights and powers”, all of which may be exercised in aid of Lake Victoria Works under the Agreement. The applicant submits that the statutory rights and powers under s18 cannot properly be characterised as an estate in fee simple; rather, it is said, they support the construction of the Lake Victoria Works by the State of South Australia to enter land, dig and do works.

28. [85]

    The applicant relies on the observation of Williams J in City of Perth v Crystal Park Ltd (1940) 64 CLR 153; [1940] HCA 35 (Crystal Park) (at 168) to the effect that “[t]he word ‘vest’ is a word of elastic import…”. It is submitted that the vesting under s 18 of the River Murray Waters Act should be measured against the scheme contained within the agreement.

29. [86]

    Insofar as the second respondent seeks to characterise the 1922 Gazette Notice as “regularising” the vesting pursuant to s 18 of the River Murray Waters Act, the applicant argues that a more appropriate characterisation is that the Gazette Notice formalised that which until then was informal. It is submitted that the vesting “at best was a symbolic gesture that could only have been given full effect by resumption of the existing [C]rown grants”.

30. [87]

    The applicant further submits that it is implausible to suggest that all the existing freehold interests were resumed by operation of the grant of fee simple to South Australia. It is said that if, as the respondents submit, the possessory title of the applicant could not co-exist with the fee simple grant pursuant to s18, then neither could the freehold interests granted under the Crown Lands Alienation Act 1861 (NSW).

31. [88]

    The applicant cavils with the proposition put by the first respondent that the Status Report exhibited to Mr Bell’s affidavit, affirmed 19 December 2016, evidences that the interests resumed pursuant to the 1922 Gazette Notice comprised only the non-fee simple interests touching upon portions of land purportedly vested pursuant to s18 of the River Murray Waters Act (see the submission noted at [98] below). The applicant says that the Status Table in that report fails to convey that the Registrar General stamped the certificates of title for each of the fee simple grants existing as at 1 December 1922 as follows:

32. [89]

    It is noted that the vesting of the estate of fee simple in the Commissioner of Public Works is there described as having occurred “by the operation and for the purpose of the Public Works Act” and it is said that this could not have occurred prior to the 1922 Gazette Notice. The applicant argues that this is further supported by the dates of production and entry within the text.

33. [90]

    The applicant notes that, of those fee simple grants existing at the time of the 1922 Gazette Notice, the grants at items 32, 33 and 37 of the Status Table have handwritten text dated 1 December 1922 stating “Affected by Resumption for the purposes of the River Murray Waters Act 1915” (and that the titles at items 43, 44 and 46 of the Status Table are unclear but also appear to have this text).

34. [91]

    The applicant submits that the proposition put for the first respondent (namely, that s18 demonstrates a clear and plain intention to extinguish possessory title, or native title, interests in land but not leasehold or licences held from the Crown) is not maintainable. The applicant says that Whitlam J, in the Federal Court Proceedings 2003, made no determination as to the operation of s 18 of the River Murray Waters Act but that his Honour was not satisfied that the section clearly vested land prior to the 1922 Gazette Notice (referring to his Honour’s reasons at [23]-[25]); and submits that this reasoning is significant for this Court as a matter of comity.

35. [92]

    Thus, the applicant submits that question 1 should be answered ”No”.

36. [93]

    The first respondent submits that the lands the subject of the claim (or at least Lake Victoria, that being the significant portion of the said lands) were vested in South Australia as an estate in fee simple under s 18 of the River Murray Waters Act in 1917, relying on the plain words of the statute.

37. [94]

    The first respondent argues that the use of the adverb “hereby” in s 18 of the River Murray Waters Act makes plain that the vesting occurred upon the commencement of that Act; that is, that the act of vesting itself occurred by force of the statute. It is submitted that, in the absence of any further set of machinery provisions within the River Murray Waters Act to give effect to the command in s 18, the text of s 18 stands as the sole mechanism by which the land identified in Schedule B to the River Murray Waters Act was vested.

38. [95]

    It is submitted that this construction of the text is supported by the context and purpose of the River Murray Waters Act. It is noted that the long title to that Act makes clear that the intention of the Act was “to ratify and provide for carrying out an agreement respecting the River Murray and Lake Victoria and other waters”. It is said that the broader purpose was to provide for the construction of the Lake Victoria Works and the creation of a series of locks upstream and downstream from Lake Victoria to regulate the flow of waters to enable both irrigation farming and to render the waters of the River Murray navigable for the transport of livestock and farm produce (referring to the Agreement, especially cll 20-22).

39. [96]

    That the lands identified in Schedule B were to be vested “hereby” (i.e. by force of the statute itself) is said also to be confirmed by the extrinsic materials. Reference is made to the second reading speech in which it was said that the Bill confirmed that the land containing Lake Victoria was to be given to the people of South Australia to ensure that South Australia could access flood waters contained within the lake. It is further noted that the vesting under the statute was the culmination of a political compromise to reach agreement and to ratify that agreement by the enactment of legislation in the various States.

40. [97]

    The first respondent says (in admittedly contradictory terms) that, while the meaning and intention of s 18 of the River Murray Waters Act is plain, the description of the lands provided for by Schedule B is “at once both clear and opaque”. The first respondent says that the description and identification of the lands up to the semicolon in the text of Schedule B is “clear enough” (namely, that it was the land covered by water now known as Lake Victoria as well as Rufus River and Frenchman’s Creek connecting the River Murray with the lake) but accepts that the reference to the lands after the semicolon (i.e. “land adjoining thereto”) is “less clear”.

41. [98]

    The first respondent points to the evidence filed in this proceeding (and which relied upon in Lawson Federal Court Proceedings 2003), which the first respondent says is unequivocal in identifying Lake Victoria and the watercourses of Rufus River and Frenchman’s Creek as being vested under s 18 of the River Murray Waters Act: namely, the evidence contained in the Jackson and Bell affidavits (the affidavit affirmed by John James Jackson on 22 December 2016 and the affidavit affirmed by Andrew Dean Bell on 19 December 2016) which identify the land the subject of the statutory vesting under s 18 of the River Murray Waters Act and Schedule B, at least to the extent that it describes the lands up to the semicolon. It is noted that that evidence is not contradicted; and it is submitted that it supports the construction contended for by the first respondent.

42. [99]

    The first respondent says that, while it is clear that the affidavits of Jackson and Bell make plain that the effect of the 1922 Gazette Notice was to resume private property interests that touched upon the area covered by the Gazette Notice, the Status Report exhibited to Bell’s affidavit evidences that the interests resumed that touched upon Lake Victoria were the lesser (or non fee simple) interests touching upon portions of the land vested under s 18 of the River Murray Waters Act. Further, the first respondent says that, irrespective of the purported effect of the 1922 Gazette Notice issued under the Public Works Act, that subsequent act (i.e., the Gazette Notice) does not bear upon the construction of s 18 of the River Murray Waters Act.

43. [100]

    The first respondent says that, contrary to the suggestion made in the submissions of the applicant (at [18] of her 23 August 2020 submissions; see above at [91]), in the Lawson Federal Court Proceedings 2003, Whitlam J expressly did not decide whether the land the subject of the claimant application and the compensation application had been vested under the River Murray Waters Act. It is said that that was not because his Honour was “not satisfied” that the lands the subject of the claims had not been vested under the River Murray Waters Act; but, rather, that his Honour acceded to the submission advocated for by the Commonwealth (but, it is noted, not by South Australia or New South Wales) that if the Court were satisfied that the Gazette Notice published under the Public Works Act gave rise to a “previous exclusive possession act” for the purposes of s 23B of the Native Title Act, that was sufficient to dispose of the issues raised by both applications before the Court (see at [23] Lawson Federal Court Proceedings 2003). Thus, it is said (and I agree) that there is no finding on the underlying legal proposition that the River Murray Waters Act vested land in fee simple in South Australia and no finding on the factual proposition of what land was vested in South Australia; the only factual finding being that the land covered by the Gazette Notice under the Public Works Act was the same land that was the subject of the two applications before his Honour.

44. [101]

    It is submitted that Whitlam J’s observations (at [25]) of the Lawson Federal Court Proceedings 2003 (which it is noted were in obiter), must be read in the broader context of the discussion in that case, which concerned an examination of titles to land and how those titles were affected by the construction of the Lake Victoria Works. It is said that Whitlam J’s broad observation (that s 18 was “curious” and that s 16 of the River Murray Waters Act was the process adopted to resume land) is too broadly stated – as it renders s 18 entirely redundant. It is said that the better and more harmonious construction of the relevant provisions is that s 16 was to be utilised to ensure that the construction of works carried on by different government entities, which were to be conducted over a number of years, could be carried out on other land as might be necessary. It is submitted that such a construction ensures a role for both s 18 of the River Murray Waters Act and the Public Works Act; and therefore avoids a construction that renders s 18 of the River Murray Waters Act otiose.

45. [102]

    Thus, the first respondent submits that the answer to question 1 is “Yes”.

46. [103]

    In reply to the oral submissions of the applicant, the first respondent disavowed any submission that as a matter of statutory construction reference may only be made to context and purpose if there is latent ambiguity (see T 32.20) but emphasised that the exercise of statutory construction must commence with the text and argued that ambiguity cannot be created out of the context and purpose of the legislation in order to affect the construction to be placed on the text (see T 32.20ff). The first respondent does not suggest that any part of Schedule B should be disregarded; rather, the first respondent’s proposition is that one commences with s 18 and interprets it in light of the other material, including Schedule B (see T 32.44).

47. [104]

    Insofar as the applicant argues that what was effected by s 18 was something other than what is known to the common law as a vesting in fee simple, the first respondent makes the point that nowhere in the legislation is there anything that identifies any limited set of rights there being conferred or any intention to confer only a limited set of rights (see T 33.5ff).

48. [105]

    As to s 14, it is noted that this commences with the words “[s]ubject to this Act and the agreement”; and, as to s 16, it is said that s 16(b) applies to the mechanism by which the land will be resumed but is dealing with resumptions in the future that might be necessary for the Lake Victoria Works, not the land that had already been vested under s 18.

49. [106]

    As to the reliance placed on the lack of compensation for the resumption or appropriation of the land, it is submitted that it is not surprising that there was no compensation provided for in respect of native title (as it was not then recognised) and that later dealings are irrelevant to the construction of s 18.

50. [107]

    The second respondent similarly notes that s 18 of the River Murray Waters Act does not speak of or require a subsequent appropriation or resumption; rather, the second respondent says, the section is, without more, a vesting that transfers and vests an estate in fee simple in South Australia in order to make the scheme work.

51. [108]

    It is said that, consistent with this, the words “are hereby vested in South Australia for an estate in fee- simple” in s 18 of the River Murray Waters Act denote an immediate vesting upon and by reason of commencement of that Act on 31 January 1917. The second respondent points to the ordinary meaning of the word “hereby” as defined in the Macquarie Dictionary (namely, “by this, by means of this, as a result of this”), though in this regard the admonition against reliance on the use of dictionary definitions must here be noted.

52. [109]

    It is said that the immediate vesting provided for by s 18 of the River Murray Waters Act contrasts with the capability of using procedures such as those provided for in s 16 of that Act and the procedures available under the Public Works Act for the appropriation or resumption of land to fulfil other purposes contemplated in the Agreement under the River Murray Waters Act or more generally.

53. [110]

    It is said that s 16 of the River Murray Waters Act anticipated that there would be the need for appropriation of Crown land, resumption of non-Crown land or the purchase of land in order to undertake works; noting particularly that s 16(b) permitted a Government of another State to ask the Governor of New South Wales to appropriate, resume or purchase land required for such works; and that the machinery to facilitate such an appropriation or resumption is set out in the Public Works Act (in particular at ss 42-46).

54. [111]

    It is noted that the Minister for Public Works observed in the second reading speech (at 2366):

55. [112]

    The second respondent says that s 16 of the River Murray Waters Act is a provision that would have applied in instances not necessarily known or anticipated to be required at the time of enactment of the River Murray Waters Act. The vesting of the fee simple of Lake Victoria in South Australia was the subject of separate specific provision.

56. [113]

    The second respondent argues that the concurrent existence of distinct arrangements each capable of achieving a vesting of land is unsurprising given: that the Lake Victoria Works were to be the first part of the works attended to under the River Murray Waters Act; the substantial area and extent of the lands concerned; the likely realisation that alienation of such an area was a proper matter for consideration by Parliament; and the fact that the vesting of the land in South Australia was a critical element in negotiations and in the subsequent agreement.

57. [114]

    The second respondent maintains that reading s 18 of the River Murray Waters Act in its clear and unequivocal language demonstrates that the land identified in Schedule B to the Agreement, the subject of the applicant’s claim, became vested in South Australia as an estate in fee simple upon the commencement of the River Murray Waters Act on 31 January 1917.

58. [115]

    Accordingly, it is submitted that the answer to question 1 must be “Yes”.

59. [116]

    In oral reply submissions, the second respondent submitted: that there is no significance to acts after 1917 so far as construction of the statute is concerned (see T 35); that the River Murray Waters Act was “bespoke” legislation; and that a lack of precision in the language by which the land is described does not in some way render the statute void. Insofar as reliance is placed by the applicant on the “elasticity” of the notion of “vesting” (by reference to Crystal Park), it is noted that in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Western Australia v Ward), although reference was made to the ambulatory meaning of “vest”, the majority held that what was vested by the use of that term in that particular instance was a fee simple (see at [204], [225]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ).

60. [117]

    The second respondent notes that s 18 of the River Murray Waters Act does not include words along the lines of “and free from all trusts, estates, leases, licences and claims” (which might have indicated that the State of South Australia did take a fee simple interest subject to lesser estates that were not inconsistent with the holding of the fee simple). The second respondent says that, in the present case, possessory title could not fall within that category because it is not possible for there to be two holders of the fee simple (i.e., South Australia and some other possessory holder or holder or native rights) (relying on Fejo v The Northern Territory (1998) 195 CLR 96; [1998] HCA 58 (Fejo) at [48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan J; Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178; [2000] FCA 1609 (Bodney) at [70] per Lehane J; and Western Australia v Ward at [80] per Gleeson CJ, Gaudron, Gummow and Hayne JJ) (see at T 36.16). (Pausing here, it may be noted that s 23 C was introduced in the 1998 amendment which was assented to on 27 July 1998 and commenced on 30 September 1998. Accordingly, Fejo was decided prior to the introduction of s 23C of the Native Title Act, but both Bodney and Western Australia v Ward were decided after the introduction of s 23C of that Act.)

61. [118]

    I have referred briefly above to the applicable principles of statutory construction. From a textual point of view, the relevant words “are hereby vested” (emphasis here added) convey the ordinary meaning that something is being vested by the statutory provision itself (i.e., the vesting is thereby being effected without more). The applicant’s construction in my opinion gives no meaningful work to be done by the word “hereby” and does not sit comfortably with the tense used in s 18, namely, “are … vested” (emphasis again here added).

62. [119]

    As to what is thereby being vested in the State of South Australia (to anticipate the import of question 2), I see no basis to read down the concept of “fee simple” or to construe it otherwise than by reference to its established common law meaning. There is no indication in the legislation that s 18 is limited to the creation of a “sui generis” bundle of statutory rights and powers to give effect to the scheme of the River Murray Waters Act or that it does not mean what it literally says (that an estate in fee simple is “hereby vested”).

63. [120]

    In Crystal Park, the meaning of the word “vest”, and the circumstances in which it was considered to be a word of elastic import, arose in a very particular context. Indeed, Rich ACJ, who expressed doubt as to the construction of the legislation in question (the drafting of which his Honour considered to be “confused to the point of bewilderment”), had obvious misgivings as to the proposition that the phrase “land vested” in the legislation might have been the product of any relevant misunderstanding by the draftsman (see at T 162).

64. [121]

    In Crystal Park, a statutory unincorporated board was appointed to control and manage certain specified parks and reserves. By an Order in Council in 1938, it was directed that a particular reserve “shall vest in and be held by [the board] in trust for recreation and parking area”, with power to the board to lease, subject to certain conditions. That Order in Council was expressed to be made pursuant to s 33 of the Land Act 1933-1937 (WA). The question that had there arisen was as to whether a portion of that land, which had been leased to a private company, was rateable property. The majority dismissed the appeal from the decision that it was not.

65. [122]

    Starke J noted that the board had been appointed to manage and control the reserve in question for the purposes of recreation and parking area but that the “parks and reserves” (of which this was one), as defined under the Act, meant parks and reserves vested in the Crown (see at 163). His Honour said (at 165):

66. [123]

    Williams J said (at 168):

67. [124]

    The word “vested” was there construed by reference to the context and purposes in which it appeared. In the present case, there is nothing in the legislation to qualify the concept of “vested” as meaning that the State of South Australia was to have only powers of control and management over Lake Victoria (as opposed to the holding of the legal and beneficial interest in that area of land); and the need for South Australia to be in a position to have security of its water rights (as expressly recognised in the second reading speech) would not be met if it did not hold an estate in fee simple as that is commonly understood but, instead, only some rights of control or management over the area.

68. [125]

    Accepting that there is some doubt as to the precise boundaries of what was conveyed (because the second half of the description of the lands in Schedule B is purposive not definitive in operation), what is clear is that the area vested in the State of South Australia included at a minimum the area known as Lake Victoria (the area described in the words leading up to the semi-colon). I do not consider that ambiguity in the precise boundaries of the land being conveyed (i.e., the extent of the area comprised by the words after the semi-colon) warrants an interpretation of “fee simple” as other than the fee simple estate known to the common law. That the exact boundaries of the area referred to in the words appearing after the semi-colon might or were to be later specified does not render in any way uncertain the fact that the area known as Lake Victoria was included in the lands the subject of the fee simple “[t]hereby vested” in the State of South Australia.

69. [126]

    While I accept that use of a semi-colon ordinarily indicates a close connection between the successive clauses that are joined thereby, such use may be for a variety of linguistic reasons (say, to indicate the similar importance of both clauses, to provide contrasting ideas or for the later statement to complement the first). The use of a semi-colon does not to my mind indicate that that the two clauses must be read as so closely connected that an ambiguity in one would render the other in any sense inoperative or invalid.

70. [127]

    To my mind, the context and purpose of the legislation reinforce the plain meaning conveyed by s 18 of the River Murray Waters Act. It is clear from the second reading speech that what had led to the Agreement between the respective States (a copy of which was contained in Schedule B to the Act) was a lengthy process of negotiation by reference to which the State of South Australia was to be provided with certainty as to its water rights (of which Lake Victoria was a critical part).

71. [128]

    As such, s 18 cannot in my opinion be read as being limited to a provision effecting a vesting only so as (and only to the extent required) to enable the construction of the agreed works but, rather, must be read and understood as a substantive provision intended to provide certainty in relation to (and in that sense secure) South Australia’s water rights (that being the “price”, in effect, for that State’s consent to the arrangement). While it was clearly anticipated that the Lake Victoria Works would take some time to complete, the significance of the immediate vesting of land (necessary as part of the negotiated outcome by which South Australia consented to the Agreement) makes it difficult to accept that there was not a legislative intention for an estate in fee simple in respect of Lake Victoria immediately to be vested in the State of South Australia (and so for the legislation immediately to extinguish private rights) on the commencement of the legislation (and without more being required for that to be effected). There is nothing in the text of the River Murray Waters Act, for example, to suggest that the grant of land to South Australia was conditional on all existing rights and interests in that land first being resumed under the Public Works Act. Nor is there anything to suggest that s 18 of the River Murray Waters Act is to be viewed only as a “symbolic gesture” or simply as a deeming or “enabling” provision (as contended for by the applicant); rather than as effecting a grant immediately on commencement of that Act.

72. [129]

    Had it been intended that some further action would be required to be taken in order to effect the vesting of the land, it would have been a simple matter for the legislature to have included a provision to make that clear. It did not do so.

73. [130]

    Reading the River Murray Waters Act in this way also accords with the presumption against surplusage in statutory interpretation. In Project Blue Sky, the plurality (McHugh, Gummow, Kirby and Hayne JJ) said (at [16]) :

74. [131]

    By reading s 18 of the River Murray Waters Act as operating immediately to vest the specified land in the South Australian Government, both ss 16 and 18 are “made useful and pertinent”. That is to say, s 18 operated immediately to vest specified land which, at the time, was known to be required for the works; while s 16 provided for a procedure by which a State other than New South Wales could subsequently request the Governor under the Public Works Act to “appropriate, resume, or purchase [other] land [if or as] required for such works”. If the sections are not so read then s 18 is given no real work to do. The second respondent’s submissions on the interaction of ss 16 and 18 of the River Murray Waters Act should be preferred. To the extent that my conclusion differs from the remarks of Whitlam J in Lawson Federal Court Proceedings 2003, as already noted those observations were obiter dicta and his Honour expressly declined there to determine the question now before me as to the construction and operation of s 18 of the Act. Acutely conscious as I am of the principle of comity and its importance to the rule of law, I have taken into account the observations made by his Honour but have, with no disrespect to his Honour’s tentative views, reached a different conclusion as to the construction of the legislation in question from that which his Honour appeared to contemplate but did not finally determine.

75. [132]

    The first question should therefore in my opinion be answered in the affirmative. The River Murray Waters Act expressed the plain and clear intention to vest the land as an estate of fee simple to South Australia’s benefit.

76. [133]

    The fact that later land dealings may in some respects be seen as inconsistent with an earlier vesting of the fee simple in the State of South Australia does not change the conclusion I have reached – such later land dealings (to the extent of any inconsistency) might equally have been the product of a misunderstanding of the legal effect of the earlier legislation. Hence it is not necessary to enter into the debate as to the precise characterisation of the subsequent land dealings to which reference is made in submissions (see for example the discussion at [98] above and [134]ff below).

77. [134]

    As to the significance attributed to other third party rights, the second respondent points to the particular nature of the Scadding interest (which was obtained through a conditional purchase grant). The second respondent says that it is apparent from the documentation that only part of the land concerned in the Scadding grant was the subject of the notification in 1922. It is submitted that most of the land the subject of the grant to Mr Scadding was unaffected by either the River Murray Waters Act (that being confined to an area largely to the north of that land but extending into it) or the resumption under the 1922 Gazette Notice. It is submitted that “something of the land may have been resumed, or may have been within the area described in that gazette notification” but that the grant of a fee simple to Mr Scadding in 1920 is consistent with him having secured his interest in most of the land which he would retain and which would remain outside the ownership of the State of South Australia.

78. [135]

    The second respondent argues that no part of Mr Scadding’s title granted to him in 1920 could have extended over the area that was vested in the State of South Australia because he secured his interest after 1917 (so anything vested in South Australia was not within the gift of New South Wales) (see T 22.27). It is noted that it was a grant pursuant to a conditional purchase (or perhaps a conditional lease) that dated from many years earlier. Reference is made to the affidavit of Andrew Dean Bell (at pp 176, 315), where Mr Bell identifies various documents which in turn identify various parcels of land (see the reference to “Grant of land purchased by conditional sale”). These documents show that Mr Scadding was “entitled to a parcel of land hereinafter described in light of an additional conditional purchase applied for on 12 August 1909” (the nature of a conditional purchase of that kind being a staged process, whereby conditions had to be satisfied before the transfer would be effected) (T 23.8). The document (at p 315 of Bell’s affidavit) refers to an original conditional purchase applied for on 19 October 1882. The second respondent submits that this is the explanation for the making of a grant in 1920 (i.e., that it was required under the terms of the conditional purchase albeit that only part of the land was eventually vested in Mr Scadding) (see T 23ff). Further, the grant that was eventually made was that part of the land that did not fall within the area already vested by that stage in the State of South Australia.

79. [136]

    The second respondent says that the recording of the resumption (on p 316 of Bell’s affidavit) is plainly a reference to the 1922 event. The second respondent says that this does not bear on the position as at the commencement in 1917 of the River Murray Waters Act (suggesting that it might perhaps have been a regularisation that occurred in accordance with land title office practice) but that whatever be the case, the position was that Mr Scadding’s parcel of land did not include that part that was required for the Lake Victoria Works.

80. [137]

    Whether or not there was a process of regularisation (or, as I have postulated earlier at [129] that this was a product of a misunderstanding of the legislative effect of the earlier vesting in 1917), I do not accept that the later land dealings bear upon the proper interpretation of the earlier legislation. The fact that the later land dealings operated as conditional purchases or were noted to be affected by the resumption may explain a perceived need to regularise the title but it is not necessary (nor is it possible) here to express a concluded view on that issue.

81. [138]

    Nor does the fact that other existing landholders’ rights may have been affected (without compensation) alter my conclusion. The common law presumption against legislative deprivation of proprietary rights without compensation is simply that – a presumption; whether third party rights in general were so affected is not the question here – what is in issue is the import of the legislation on the possessory title and native title rights claimed by the applicant. As the second respondent has noted, it is not surprising that consideration was not given to the latter by the legislature at the time given the only belated recognition of native title.

82. [139]

    As has already been set out above, question 2 is as follows:

83. [140]

    The parties’ submissions may be summarised as follows.

84. [141]

    The applicant accepts that if s 18 of the River Murray Waters Act operated to vest a fee simple estate “in the true common law sense”, then that is necessarily inconsistent with both the continued existence of native title and the continued existence of a possessory title.

85. [142]

    However, the applicant maintains that (given that the notion of vesting has been recognised as being “elastic”) if there was a vesting of a fee simple then it was either: subject to or conditional upon resumption of the then existing rights and interests by the State of New South Wales; or of such a limited nature that it may have passed some powers of control or management but no powers inconsistent with those of the existing rights holders. As adverted to above, the applicant refers in this context to Crystal Park, where it was said that a declaration that lands are vested in a public body for public purposes may “pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively”.

86. [143]

    The applicant further submits (as was the effect of the similar submission before Whitlam J in the Lawson Federal Court Proceedings 2003) that, even if the answer to question 1 is “Yes” (and the vesting of the fee simple is immediate, unfettered and unconditional), the vesting of a fee simple in the South Australian Government is not a “previous exclusive possession act” as defined by the Native Title Act, as it falls within the exception at s 23B(9C), that exception being that:

87. [144]

    The applicant says that the grant is a Crown to Crown vesting within the meaning of s 23B(9C), and so does not otherwise cause extinguishment of native title rights and interests; nor does the use of the land, by reason of the vesting, extinguish native title. It is said that (as held by Whitlam J and affirmed on appeal to the Full Court of the Federal Court – see Lawson Federal Court Proceedings 2003 at [22]; Lawson Full Federal Court Proceedings [28]) the 1922 Gazette Notice had the effect of extinguishing any and all native title rights then existing in the claim area.

88. [145]

    The first respondent argues (citing Fejo at [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; and Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29 (Wilson v Anderson) at [36] per Gaudron, Gummow and Hayne JJ) that, to the extent that any aspect of the claim or proposed amended claim rests on the existence of native title rights and interests after 31 January1917, that claim cannot succeed.

89. [146]

    It is said that the same result applies to any claim in adverse possession as at the publication of the Gazette Notice. It is said that the elements of adverse possession that had to exist in 1922 cannot be satisfied in the face of a pre-existing grant of a fee simple estate under statute on 31 January 1917; and therefore, that the claim cannot succeed. The first respondent argues that the statutory vesting under s 18 of the River Murray Waters Act is entirely inconsistent with any claim based on adverse possession as at 1917 (and certainly as at 1922). Therefore, it is submitted that question 2(a) should be answered “Yes”.

90. [147]

    As to question 2(b), the first respondent notes that the effect of s 23B of the Native Title Act was explained in Western Australia v Ward at [8]-[10], [41]-[45], [135]-[140] (per Gleeson CJ, Gaudron, Gummow and Hayne JJ), and Wilson v Anderson at [36] (per Gaudron, Gummow and Hayne JJ). It is noted that the effect of those cases was outlined by Whitlam J in the Lawson Federal Court Proceedings 2003 (at [17]-[22], [26]). The first respondent submits that the analysis of Whitlam J applies, mutatis mutandis, to question 2(b) in this case.

91. [148]

    The first respondent argues that the vesting of the land as an estate in fee simple under s 18 of the River Murray Waters Act is a “previous exclusive possession act” by virtue of ss 23B(2)(c)(ii) and 23C of the Native Title Act and s 20 of the NSW Native Title Act. It is noted that the effect of s 20 of the NSW Native Title Act with respect to freehold estates was described in Wilson v Anderson where Gaudron, Gummow, and Hayne JJ said (at [49]) that s 20 of the NSW Native Title Act:

92. [149]

    It is submitted that, so construed, there is no doubt as to the validity of the “act” of the statutory vesting under the River Murray Waters Act, and that that “act” extinguished native title rights and interests.

93. [150]

    Reference is also made to the decision of Lehane J in Bodney where (at [29]) his Honour determined that a grant of an indefeasible estate in fee simple by the State of Western Australia to the Commonwealth was inconsistent with the continued enjoyment of native title (consistent with the exception in s 23B(9C)(a); i.e., with the exception contained within that exception).

94. [151]

    Therefore, it is submitted that question 2(b) should be answered “Yes”.

95. [152]

    The second respondent notes (as adverted to already) that the effect of s 18 of the River Murray Waters Act was among the matters raised in proceedings before Whitlam J in the Federal Court which called for consideration of whether native title was capable of existing in Lake Victoria having regard to certain prior dealings; but that it was found to be unnecessary and inappropriate to answer questions concerning s 18 of the River Murray Waters Act and concerning 27 other prior dealings affecting parts of the land concerned.

96. [153]

    It is noted that Whitlam J, having found that the 1922 Gazette Notice had the effect of appropriating Crown land and resuming land that was not Crown land and vesting all such lands in the State of South Australia, concluded that, as a consequence, the notification constituted a “previous exclusive possession act” within the meaning of s 23B of the Native Title Act which rendered the subsequent existence of native title an impossibility (Lawson Federal Court Proceedings 2003 at [19]-[23]); and that his Honour then turned to the questions concerning s 18 of the River Murray Waters Act and those 27 other dealings, in relation to which his Honour concluded that there was simply no utility in answering the further questions and no point in going back (in time) beyond the Gazette Notice (Lawson Federal Court Proceedings 2003 at [23]).

97. [154]

    The second respondent here observes that the differences in the descriptions of the area set out in the River Murray Waters Act and in the 1922 Gazette Notice were seen by Whitlam J as favouring consideration only of the effect of the notification, as that document referred to the very area that was the subject of the native title claim whereas the applicant had not conceded that the two areas were, although described differently, substantially identical for all practical purposes.

98. [155]

    Second, the second respondent argues that the approach taken by Whitlam J must be seen in the context of the issue for decision (namely, whether it was conceivable that native title rights or rights to compensation under the Native Title Act could have existed, and thus, whether the applicant’s proceedings were doomed to fail). It is said that, having concluded that the 1922 Gazette Notice would have extinguished any and all native title rights that existed immediately prior to that date, questions as to whether earlier events had had the same effect in relation to part or all of the area concerned were redundant and did not, in the context of the proceedings, require answers.

99. [156]

    The second respondent submits (and I consider this submission to have force) that the effect of s 18 of the River Murray Waters Act is not in any event to be determined by reference to actions which occurred subsequently. It is submitted that the employment of processes available under s 16 of the River Murray Waters Act and under the Public Works Act in 1922 cannot usefully shed light on what was intended by the making of the River Murray Waters Act. Further, as noted already, the second respondent points to the obiter nature of such comments as were made by Whitlam J in relation to s 18 of the River Murray Waters Act.

100. [157]

     It is said that whilst “superficially” there appear to be overlapping purposes to the enactment of s 18 of the River Murray Waters Act and the publishing of the 1922 Gazette Notice, the effects of the steps taken differ; and that this is the position even leaving aside any possible differences in the area described in each instance.

101. [158]

     The second respondent notes that while s 18 of the River Murray Waters Act deals with the fee simple interest and vests that interest in South Australia, that section is silent as to how lesser interests are dealt with or what is to become of them or those who held them. It is said that this leaves open the possibility that, for example, the fee simple vested in South Australia may have remained burdened after commencement of the River Murray Waters Act by leasehold interests, licences, easements and statutory or equitable or personal interests. In contrast, it is said that where s 42 of the Public Works Act is employed for the appropriation or resumption of land, the land concerned is, by operation of s 43 of the Public Works Act, vested in the relevant Constructing Authority on behalf of the Crown for the purpose of that Act for an estate in fee simple in possession, freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way, or other easements whatsoever and to the intent that the legal estate therein, together with all powers incidental thereto, or conferred by that Act shall be vested in the Constructing Authority as a trustee. It is said that there was therefore work to be done by the notification even if the commencement of the River Murray Waters Act had vested a fee simple interest in South Australia.

102. [159]

     In support of that contention, the second respondent points to the 1922 Gazette Notice that, at the time of publication of the notification, some parts of the area covered by the notice were subject to various interests other than freehold estates. In this regard, specific mention is made in the notification of conditional purchases, conditional leases, and Western Lands Leases. In addition, it is said that the possibility existed that some of the many parcels identified by reference to Torrens Title volume and folio numbers may have been subject to private leases, licences, or other arrangements which were capable of remaining valid and in force notwithstanding the installation of South Australia as owner of the estate in fee simple. It is said that in these circumstances the 1922 Gazette Notice, and the employment of s 16 of the River Murray Waters Act and s 42 of the Public Works Act for that purpose, may well have been intended to remove all doubt that South Australia was to have the benefit of the land already vested in it by the River Murray Waters Act free of all other interests. The second respondent says that these matters do not appear to have been considered by Whitlam J and that, in view of the ultimate question under consideration in those proceedings (as to whether it was conceivable that native title rights or rights to compensation under the Native Title Act might have existed), it was not necessary for such matters there to be considered.

103. [160]

     Further, the second respondent says that, unlike forms of tenure capable of remaining in existence notwithstanding the statutory transfer of the fee simple estate to South Australia under the River Murray Waters Act, the interests that the applicant seeks to assert are incapable of coexisting with the holding of a fee simple estate by the State of South Australia.

104. [161]

     As to rights based on adverse possession by the applicant’s forebears (rights that might have arisen by operation of the Nullum Tempus Act), it is submitted by the second respondent that it is precisely the right that the applicant seeks to assert as having been held by her ancestors in 1922 (that is, ownership of the fee simple estate) that was, by s 18 of the River Murray Waters Act, vested in South Australia on 31 January 1917. It is said that it is not possible for two parties concurrently to have held the same interest (especially where an estate in fee simple is the most comprehensive of all property rights known to the common law) after 31 January 1917.

105. [162]

     As to the claimed native title rights, the second respondent says that the creation by the executive or the legislature of an interest in fee simple is inconsistent with, and extinguishes, all native title rights and interests. The second respondent relies on the following statement of the High Court in Fejo (at [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ):

106. [163]

     The second respondent says that the extinguishing effect on native title rights and interests of a grant in fee simple does not need to await a determination as to the nature and content of the native title rights. The second respondent relies on the following passage from Wilson v Anderson (at [36] per Gaudron, Gummow and Hayne JJ):

107. [164]

     On the above basis, the second respondent says that a consequence of the vesting by the River Murray Waters Act is that any and all interests in the land to which s 18 applied that were acquired through adverse possession or held as native title rights were extinguished upon the commencement of the River Murray Waters Act. It is submitted that question 2(a) should be answered accordingly.

108. [165]

     As to question 2(b), the second respondent notes that, as is set out in sub-ss 23A(1) and (2) of the Native Title Act, a previous exclusive possession act (as defined in s 23B) is declared by s 23C to extinguish any native title in relation to the land or waters covered by the freehold estate, scheduled interest, or lease concerned; and the extinguishment is taken to have happened when the act was done.

109. [166]

     The second respondent says that, although s 23C of the Native Title Act only confirms the extinguishing effect of previous exclusive possession acts attributable to the Commonwealth, s 23B permits laws of a state or territory to make provision to the same effect as s 23C; and, in the case of New South Wales, s 20 of the NSW Native Title Act is said to be a law of that kind. Consequently, it is said that the extinguishment of native title by previous exclusive possession acts attributable to the State of New South Wales is confirmed.

110. [167]

     The second respondent notes that particular acts which may amount to previous exclusive possession acts are identified in s 23B of the Native Title Act. As to the requirements of that section, the second respondent notes the following.

111. [168]

     First, that s 23B(2)(a) requires that the “act” (in this case the making of the River Murray Waters Act) must be valid either as a consequence of the efficacy of the act itself or alternatively as a result of the operation of Native Title Act Division 2 or 2A of Part 2. Here, the second respondent relies on the validity of the River Murray Waters Act at the time of its enactment and commencement. It is said that Division 2 or 2A of Part 2 of the Native Title Act has no application as those provisions concern the validation of acts which took place after 30 October 1975 where validity might fall into doubt as a result of the commencement of the Racial Discrimination Act 1975 (Cth).

112. [169]

     Second, that s 23B(2)(b) of the Native Title Act requires that the “act” must have taken place on or before 23 December 1996 (the second respondent noting that the River Murray Waters Act was made in 1915 and commenced in 1917). Third, that s 23B(2)(c) sets out in subparagraphs (i) to (viii) classes of grants or vestings which constitute previous exclusive possession acts (the second respondent noting, for present purposes, that the relevant category is “(ii) a freehold estate”).

113. [170]

     Fourth, that s 23B(3) in effect deems a vesting of land or waters in any person on terms which expressly or impliedly confer a right of exclusive possession, by or under legislation of a state or territory, to be the vesting of a freehold estate over the land or waters for the purposes of s 23B(2)(c) (the second respondent noting that s 18 of the River Murray Waters Act is legislation to which s 23B(3) applies).

114. [171]

     Fifth, that s 23B(9C) establishes two requirements for Crown to Crown grants, one of which must be met if a grant or vesting of an interest in land or waters to the Crown in any capacity or a statutory authority is to be a previous exclusive possession act, namely: either the act must, apart from the Native Title Act, extinguish native title in relation to the land or waters; or, if the grant or vesting itself does not apart from the Native Title Act extinguish native title, the land or waters must be used in a way that extinguishes native title.

115. [172]

     It is noted that Whitlam J (and the Full Federal Court) found that the vesting of a fee simple estate in South Australia as a consequence of the appropriation or resumption of the land following the 1922 Gazette Notice was, within s 23B(9C)(a) of the Native Title Act, an act which apart from the Native Title Act extinguished native title (Lawson Federal Court Proceedings 2003 at [22]; Lawson Full Federal Court Proceedings at [28]). It is submitted that the prior operation of s 18 of the River Murray Waters Act brought about the same result (i.e., the vesting of an estate in fee simple in South Australia) and that by operation of sub-ss 23B(2)(c)(ii), (3) and (9C) of the Native Title Act, and having regard to the consequences of a grant or vesting of such an estate, all native title rights and interests were extinguished.

116. [173]

     Thus, it is submitted by the second respondent that question 2(b) should be answered ”Yes”.

117. [174]

     Essentially for the reasons put forward by the respondents in their submissions, and having regard to the reasons for the conclusion I have reached in relation to question 1, I have concluded that questions 2(a) and 2(b) should be answered in the affirmative.

118. [175]

     What is, in part, here sought to be argued by the applicant is that any estate in fee simple that was vested by operation of River Murray Waters Act was one that was limited in nature and/or was subject to a formal act of resumption beyond that effected by the legislation alone. The applicant submits that, were it to be found that an estate in fee simple did vest in 1917 (contrary to her principal contention), then that vesting passed only some limited powers of control or management but not any powers inconsistent with the existing rights holders (inter alia, invoking the reasoning in Crystal Park at 168 per Williams J). However, an estate in fee simple is recognised as being one of the most comprehensive forms of proprietary interests at common law (see, for example, Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656; [1993] HCA 45 per Deane, Dawson and Gaudron JJ; Amodu Tijani v The Secretary Southern Nigeria [1921] 2 AC 399 at 403 per Viscount Haldane).

119. [176]

     I also have difficulty accepting any such proposition having regard to the decisions of the High Court in Fejo (at [48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan J) and Western Australia v Ward (at [80] per Gleeson CJ, Gaudron, Gummow and Hayne JJ); as well as that of Lehane J in Bodney (at [70]). These decisions lead me to reject the applicant’s submission which proceeded on the footing of Cystal Park (see also the debate in submissions at T 35.29ff).

120. [177]

     Additionally, given the purpose and context of the River Murray Waters Act, I consider that it is not apt to describe the situation after 1917 as one where it was intended that South Australia hold only limited powers of control or management rather than the full interest of an estate in fee simple.

121. [178]

     Such an argument is also inconsistent with the reasoning of Whitlam J (at [21]-[22] of his Honour’s reasons in Lawson Federal Court Proceedings 2003, as extracted earlier), that vesting of an estate in fee simple in the Crown will extinguish any native title over the subject land (albeit that his Honour there proceeded on the basis that the resumption was effected under the Public Works Act, not by reference to s 18 of the River Murray Waters Act). His Honour’s reasoning was that the vesting of land as an estate in fee simple is a previous exclusive possession act by virtue of s 23B(2)(c)(ii) of the Native Title Act.

122. [179]

     I accept the force of the respondents’ submission that there would be incongruity between Whitlam J’s decision (in Lawson Federal Court Proceedings 2003 as to the effect of a vesting under the Gazette Notice) and any conclusion that (of the kind for which the applicant here contends) that s 18 of the River Murray Waters Act did not extinguish native title (by reference to s 23B of the Native Title Act). To my mind, the vesting of an estate in fee simple that occurred under the River Murray Waters Act is a previous exclusive possession act. His Honour’s reasoning applies mutatis mutandis to this case; and, as a matter of comity, is entitled to be given weight.

123. [180]

     As to the applicant’s submission that the exclusion in s 23B(9C) applies because the vesting of an interest in land is not a previous exclusive possession act if it is one that occurs between the Crown (or a statutory authority) and the Crown, this exception is introduced by the prefatory words “unless, apart from this Act” (see sub-para (a)). On the underlying premise (as I have found) that there was a vesting under s 18 of the River Murray Waters Act on 31 January 1917 (when the legislation came into operation), that was ipso facto a relevant and valid act and, therefore, the proviso (or the further exception in sub-para (a) (“apart from this Act”)) is engaged. On that basis (and, I note, consistently with the reasoning the Full Federal Court as regards the 1922 events there under consideration), native title was extinguished on the commencement of the River Murray Waters Act and it is unnecessary to determine if s 23B(9C)(b) would also apply. Again, the remarks of Whitlam J (see at [22]) apply mutatis mutandis.

124. [181]

     Accordingly, questions 2(a) and 2(b) should be answered in the affirmative.

Application to amend the claim

1. [182]

   The applicant’s amended notice of motion seeks leave to amend the originating proceedings or leave to bring new proceedings and consolidate those proceedings with the present proceedings. As adverted to above, the amendments sought to be made in relation to the compensation application are to: abandon the ground based upon breach of trust; add a new ground based on native title rights; and add claims for interest and costs.

2. [183]

   The orders sought in the amended notice of motion are framed in the alternative: order 1 is premised on finding that the proposed amendment is within the scope of leave and that an amended notice of claim is not required to be served; order 2, in the alternative, is to accommodate a finding that, while the scope of the leave is sufficient, it is necessary to serve an amended notice of claim; order 3 is to accommodate findings that the scope of the leave is insufficient and the leave must be varied; and order 4 seeks a new grant of leave in the event that the applicant is unsuccessful in respect of orders 1-3. Meanwhile, order 5 is designed to facilitate the expeditious hearing of the adverse possession claim and the native title claim.

3. [184]

   By way of summary, the native title claim is proposed to be put in the alternative or in addition to the adverse possession claim. Those claims are as set out in draft points of claim attached to an affidavit (filed 23 August 2019) of the applicant’s solicitor, Ms Anne Cregan.

4. [185]

   The native title claim is that, as at 1788, there existed a group of people (the Maraura People) who possessed native title rights and interests in the area the subject of the 1922 Gazette Notice (the Application Area) and that those people and their descendants continued to exist as a group and possessed native title rights and interests in the Application Area until those rights and interests were acquired in 1922.

5. [186]

   It is said that the existence of native title rights and interests in lands and waters immediately adjacent to the Application Area was recognised by a consent determination in the Federal Court of Australia in Barkandji Traditional Owners (No 8) v Attorney General of New South Wales [2015] FCA 604 (Barkandji (No 8)) on 16 June 2015 (proceedings to which the second respondent in the present proceedings was the party representing the State of New South Wales). Reference is made to the recognition in the determination (at [B]) that the “Barkandji and Malyangapa People” are comprised of people including the Mararura sub-group of the Barkandji People.

6. [187]

   As to the possessory title claim, the applicant seeks to plead in the alternative that the possessory title was held in trust by and for the Maraura People then in existence in 1922. It is said that such a claim is available on the existing application and is merely a variation thereto.

7. [188]

   Turning to the relief claimed in order 1, the applicant maintains that the leave granted by Biscoe J (in the Lawson LEC Proceedings) was not limited in such a way as to preclude any native title compensation claim. In particular, it is said that the order, on its terms, does not limit the nature of the notice to be served on the Constructing Authority and the Crown Solicitor to any ground of compensation.

8. [189]

   The applicant says that the identification by Biscoe J of the applicant’s proposed claim as a land rights claim, although broad, is an accurate characterisation of the claim (the applicant noting the reference by Biscoe J to the decisions in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (Mabo), and Jones v State of Queensland [2000] QSC 267) but that his Honour did not limit the grant of leave to that ground (and had noted that s 102(a) of the Public Works Act required the nature of the estate or interest to be given to the Constructing Authority at the “next stage” of the process if the application for an extension of time were to be granted).

9. [190]

   The applicant points out that s 102 of the Public Works Act provided at the relevant time for the service of a notice of claim upon the Constructing Authority but did not limit any subsequent action to the nature of the estate or interest set out in the claim. It is said that, pursuant to s 104 of that Act, the court’s jurisdiction was enlivened by the absence of agreement between the applicant and the Constructing Authority about the quantum of the claimed compensation; and that, the jurisdiction having been enlivened and the proceedings having been commenced, the court is not constrained by the nature of the estate or interest as set out in the notice of claim.

10. [191]

    Insofar as the respondents foreshadowed objections to the proposed amendments to the application concerning the proposed native title claim (on the basis that s 81 of the Native Title Act has the effect of creating an exclusive jurisdiction in respect of the determination of native title rights and interests), the applicant says that s 81 is directed towards applications filed in the Federal Court and does not purport to create exclusive jurisdiction for the Federal Court and High Court beyond the hearing and determining of those applications. Reference is made in that regard to the explanatory memorandum to the Native Title Bill 1993 (Cth) in which it was said that states and territories might set up their own bodies to hear native title claims and compensation claims; that where those bodies complied with the criteria and standards set out in the Bill at cl 236 then the responsible Commonwealth Minister would be able to recognise those bodies; and that where there is a recognised state or territory body then native title claims might be initiated in either that body or the Commonwealth system (see the explanatory memorandum at p 8). It is submitted that the restriction of the Federal Court and High Court jurisdictions to applications made in the Federal Court is more readily understood in light of this.

11. [192]

    That said, the applicant does not dispute that the Native Title Act was amended after the decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10, requiring all applications for a determination of native title rights and interests under the Act to be made to, and determined by, the Federal Court.

12. [193]

    The applicant also submits that the operation of s 211 of the Native Title Act is of relevance, in that proceedings concerning the operation of that section have been commenced (and findings as to the existence of native title rights and interests made) in courts other than the Federal Court (referring to Yanner v Eaton (No 2) (1999) 201 CLR 351; [1999] HCA 69, and Karpany v Dietman (2013) 252 CLR 507; [2013] HCA 47).

13. [194]

    The applicant says that the proposed compensation application is not an application pursuant to the Native Title Act; rather, it is a compensation claim pursuant to the Public Works Act and that the former legislation does not prohibit claims for compensation under State law (see, for example, s 49 of the Native Title Act). It is submitted that the compulsory acquisition of native title rights undertaken by the states or territories prior to 1975 is outside the parameters of the compensation scheme established by the Native Title Act.

14. [195]

    Insofar as the second respondent has previously raised the possibility that the Court might be embarrassed by the determination of other compensation claims in the region by the Federal Court, the applicant says that: the effect of the decision in Wilson v Anderson is such that native title was at the very latest extinguished by grant of the Western Lands Leases (under the Western Lands Act 1901 (NSW)), which dominate the whole of the western division of New South Wales; the extent of the extinguishment of native title in the determination area of the Barkandji (No 8) determination is extensive; and, apart from the proposed amended proceedings, there are no other known mechanisms by which the applicant or any other Maraura or other Aboriginal person may claim compensation for the acquisition of native title rights and interests in the Application Area. Reference is made to the matters set out by Biscoe J at [31]-[32] of the Lawson LEC Proceedings in the context of the application for extension of time. It is submitted that there is no other forum in which the native title claim might be heard and that those same contextual matters are applicable to the issue of any potential embarrassment to the Court.

15. [196]

    Finally, it is said that the claim as it is now proposed to be structured does not give rise to any incompatibility (i.e., any factual incompatibility between a claim on behalf of the native title group and a claim to a right possessed as an individual). It is said that the rights claimed to have been acquired by the second respondent in respect of the adverse possession claim are rights to a freehold estate possessed by the Maraura People in existence at 1922, having been held or transmitted from the date at which the possessory title ripened. On the applicant’s case, those rights were either transmitted to Mary Alice Mitchell, as the daughter of one of the persons originally entitled to the possessory title, or as a trustee of the Maraura People in existence in 1922. It is said that the native title claim is for the acquisition of the native title rights and interests of the Maraura People in existence in 1922; and that it is put in addition and in the alternative to the adverse possession claim.

16. [197]

    The applicant says that if the existing grant of leave to serve a notice of claim permits the proposed amendment (see proposed order 1), then the relief sought in proposed orders 2-5 falls away but that, if it is necessary to serve an amended notice of claim, then proposed order 2 should be made or there should be an order varying the grant of leave (in accordance with the proposed order 3). It is submitted that the reasoning and contextual factors considered by Biscoe J are readily applicable to the proposed variation of leave in order specifically to accommodate a native title claim (noting a further contextual matter not then able to be considered by Biscoe J, namely the fact that the determination as to the existence of native title in lands and waters adjacent to the Application Area did not occur until the Barkandji (No 8) determination, some two months after the notice of claim was served).

17. [198]

    As noted, a further alternative claim for relief is for the grant of fresh leave to serve a further notice of compensation on the basis of acquisition of native title rights and interests (proposed order 4).

18. [199]

    As to the proposed “truncated” mechanism for dealing with the claim process, this is put on the basis that it will save time in having the matter heard and determined; and it is said that it takes into account the extent to which the proposed native title claim has already been examined by the first respondent.

19. [200]

    The first respondent opposes the applicant’s notice of motion seeking leave to amend the claim. The first respondent submits that the amended notice of motion for leave to amend the application should be dismissed for the following reasons: the incompatible nature of the alternate claims sought in the proposed amended claim; that the native title claim is speculative; that the claim is representative but the group is uncertain; that there is no explanation for the underlying premise that native title rights and interests are compensable under s 45 of the Public Works Act; and that the amendments are beyond the scope of leave granted by Biscoe J in 2014 in the Lawson LEC Proceedings.

20. [201]

    As to the factual context to the present application, the first respondent notes that at the time that Biscoe J granted an extension of time pursuant to s 102 of the Public Works Act for the applicant to serve notice on the first and second respondents, the applicant’s capacity (in terms of her standing as a beneficiary of an estate) was not in issue. It is said that the focus of the original hearing was whether the discretion to extend time under s 102 of the Public Works Act should be exercised 92 years after the relevant statutory deadline.

21. [202]

    The first respondent notes that the land asserted to have been resumed by the 1922 Gazette Notice purports to include, within its notification with respect to the appropriation of Crown land and the resumption of private property, “all that piece of land situated in the parishes of Wagumma, Wirpa, Walkminga, Wannawanna and Victoria, country of Tara, in the State of New South Wales, known as Lake Victoria, the two watercourses known as Rufus River and Part of Frenchman’s Creek, connecting the River Murray with the said lake, the banks and foreshores, and land adjoining thereto, inclusive of water, being parts of the land comprised in Certificate of Title Volume 1540, folio 60 ...”.

22. [203]

    The first respondent submits that the primary geographical focus of the original application, and the amended application, is on the purported “resumption” of Lake Victoria. The first respondent says that in the original application to the New South Wales Land and Environment Court, the applicant asserted that the Gazette Notice “resumed” “Lake Victoria” which was purportedly held under a possessory title. It is said to be uncontroversial that the applicant was not in possession of the land at the date of the alleged resumption; rather, that the possessory title is said to have been be held at that time by Alice Mitchell, the applicant’s maternal grandmother. The applicant claims her interest as a beneficiary of the estate of Ms Mitchell. Ms Mitchell’s estate itself is based on its own line of succession from a person identified as “Dan McGregor” who, among others, was said to be in possession of Lake Victoria and adjoining lands as at 1848, 60 years after colonisation.

23. [204]

    Therefore, it is said that the original claim before the Land and Environment Court of New South Wales is that the applicant had acquired title to the area of the land “resumed” in 1922 as a successor (amongst others) to the estate of Alice Mitchell who, it is asserted, held the estate herself as a successor of the title acquired by Dan McGregor (amongst others) in 1848. The applicant’s estate is characterised as a tenancy in common held with other Aboriginal people as at 1922. The first respondent emphasises that the original claim was not premised on the existence and/or the extinguishment of native title rights.

24. [205]

    The first respondent says that the claim for compensation for a “resumption” is premised on the land being “private property”. It is said that this follows from the text of s 42 of the Public Works Act which distinguishes between a notification in the Gazette identifying the “appropriation” of “Crown land” and the “resumption” of “private property”. It is noted that compensation is not available for the “appropriation” of “Crown land” (pointing to the text of s 45(1) of the Public Works Act, which speaks only of compensation for an “estate and interest... [of] lands resumed under this division of this Act…”).

25. [206]

    The first respondent says that the significance of the above, for the present application, is threefold.

26. [207]

    First, that there must have been an estate or interest in Lake Victoria held by the applicant (as a beneficiary of Ms Mitchell’s estate) capable of being “resumed” under the Public Works Act. The first respondent submits that whatever interests in land were “resumed” by publication of the 1922 Gazette Notice under s 42 of the Public Works Act, such interests did not include the freehold estate of a fee simple interest in the land because that interest had been vested in the State of South Australia under s 18 of the River Murray Waters Act in 1917. The first respondent says that what the 1922 Gazette Notice did in relation to Lake Victoria and the associated waterways (apart from “regularising” records of title in New South Wales to ensure they reflected, inter alia, the vesting under the River Murray Waters Act) was to “appropriate” other “Crown land” containing a dedication or reserve, and “resume” any lesser interest, such as leases and licences attaching to the lands required for the Lake Victoria Works. It is said that the effect of so doing was to convert the “resumed” interests into claims for compensation under s 45 of the Public Works Act. In any event, the first respondent says that the publication of the 1922 Gazette Notice subsequent to the statutory vesting under s 18 of the River Murray Waters Act is irrelevant to the construction of s 18 of that Act.

27. [208]

    Second, that whatever property right the applicant asserts was “resumed” in 1922 must be one capable of being described as a “private property” right in order for s 45(1) to apply.

28. [209]

    Third, that, to the extent that any aspect of the applicant’s claim is said to derive from native title rights and interests, it would be necessary to render such rights and interests as “private property” in order for s 45(1) of the Public Works Act to apply.

29. [210]

    In summary, leaving aside the first respondent’s primary contention that any claim premised on native title rights and interests cannot succeed if the land the subject of the claim was vested in South Australia under s 18 of the River Murray Waters Act, the first respondent opposes the application to amend the original claim on the following bases: that the relief sought in the orders identified in the proposed amended application is contradictory and incompatible; that no inference can safely be drawn from surrounding native title determinations; that the claim was transferred to this Court because the proposed amended claim is in the form of a representative action insofar as it is taken on behalf of a group of people claiming native title rights and interests but that there is no evidence as to authorisation by members of the underlying group; that, in order to succeed on a claim for compensation under the Public Works Act, the applicant must establish that the relevant native title right was a private property right and was “resumed”; and that the amendments sought to be advanced extend beyond the original claim that was the subject of the leave granted by Biscoe J in the Lawson LEC Proceedings.

30. [211]

    As to the first of those matters (the issue of incompatibility), it is noted that proposed order 1 is premised on the applicant having an entitlement flowing from her membership of a native title claim group said to have native title rights and interests immediately before the publication of the 1922 Gazette Notice, but that proposed order 2 is premised on the applicant (as a member of a class of beneficiaries of an estate of Alice Mitchell) succeeding to the estate’s right to compensation for the resumption of title arising by way of adverse possession. It is said that in order to prosecute both claims, it will be necessary for the applicant to prove not only that Ms Mitchell had an interest in the land by way of adverse possession, but that that interest is superior to and was adverse to the claimed native title rights and interests. The first respondent notes in that regard that the proposed points of claim are premised on the native title rights and interests extending to exclusive possession. It is submitted that the elements of adverse possession are inconsistent with the claimed native title rights; and that therefore the applicant cannot prosecute both claims (and nor can her representatives).

31. [212]

    As to the second, the first respondent says that insofar as proposed order 1 is premised on the existence of native title rights and interests there is no basis to support the existence of such rights. The first respondent submits that an inference cannot be drawn simply from the fact that there are other native title determinations surrounding the lands the subject of the claim (referring to Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [98], [710]-[711] per Mansfield J; Starkey on behalf of the Kokatha People v State of South Australia (2018) 261 FCR 183; [2018] FCAFC 36 at [85]-[87], [234]-[235] per Reeves J (White J agreeing)). Further, it is said that there is no explanation as to the relationship between the regional sub-groups recognised in the existing determination (referring to Barkandji (No 8)) and the claim group identified in the proposed points of claim with respect to Lake Victoria. The first respondent says that the existing determination does not provide a factual basis for any such identification and, accordingly, that the underlying premise is speculative.

32. [213]

    As to the third, it is said that there is no evidence to support the applicant’s assertion that she has authority to act on behalf of a native title group or on behalf of an entity holding native title in a neighbouring area; nor as to the constitution of such a group, or even as to whether the group members are aware of the proceeding (reference being made to s 251B of the Native Title Act in this context).

33. [214]

    As to the fourth, the first respondent says that no explanation has been provided for the premise that the relevant native title right that was “resumed” was a private property right. The first respondent says that the existing state of the law is that native title rights and interests are sui generis vis a vis other property rights (citing Northern Territory v Griffiths (2019) 93 ALJR 327; [2019] HCA 7 at [66]-[68] per Kiefel CJ, Gageler, Keane, Nettle and Gordon JJ; Mabo at 89 per Deane and Gaudron JJ; Wik Peoples v Queensland (1996) 187 CLR 1 at 215; [1996] HCA 40 per Kirby J; Western Australia v Ward at [979] per Callinan J; and referring also to Griffiths v Northern Territory (2006) 165 FCR 300; [2006] FCA 903 at [548]-[554] per Weinberg J; Griffiths v Northern Territory (No 3) (2016) 337 ALR 362; [2016] FCA 900 at [218]-[219] per Mansfield J).

34. [215]

    As to the fifth of those matters, it is said that that for which leave was given by Biscoe J was premised solely on an entitlement to compensation arising by way of adverse possession ripening in 1848 in the hands of Dan McGregor and Alice Mitchell succeeding to that possession in 1922. It is said that leave was granted to bring that claim but that leave was not granted at large (and, in particular, that leave was not granted in light of a claim pressed on the basis of native title rights and interests).

35. [216]

    The second respondent’s principal submission is, again, that, as a consequence of the extinguishment of any possessory title or native title rights which may have existed at the time of commencement of the River Murray Waters Act (and the vesting under s 18 of a fee simple interest in South Australia), the rights or interests the applicant seeks to assert in the amended process proposed (whether in an amended application or a further or amended notice of claim) cannot succeed.

36. [217]

    It is said that, in addition to the obstacle posed by the extinguishment of all rights inconsistent with South Australia’s estate in fee simple, there are other significant matters which it is said weigh against amendment of the application or the service of an amended or further notice of claim or abstract.

37. [218]

    First, it is said that the relief is unconfined. The second respondent says that the terms of the only substantive order to be sought in the proposed amended application Class 3 are “inexact in the extreme and are capable of permitting the applicant to pursue, and requiring the respondents to respond to, almost any cause whether based on possessory title, native title, trusts or any other foundation”. Complaint is made that the proposed order is phrased as “an order that the respondents and/or either of them pay compensation to the applicant in the amount to be determined”. It is submitted that any amendment should properly be limited to the prosecution of a particular cause or particular causes; and that land in respect of which the claim is made should be identified. It is further said that the explanation of the applicant’s present intentions or instructions in her solicitor’s affidavit and/or in the presently proposed points of claim do not limit the manner in which proceedings may evolve or permit the second respondent to understand the case it will ultimately meet.

38. [219]

    Second, the second respondent points (as does the first respondent, as already noted) to the inconsistency of the alternative relief sought. The second respondent says that a problem with the applicant’s proposed claims is the conflict and contradiction inherent in pursuing two mutually exclusive cases, namely: a claim based on the accrual of a fee simple interest by reason of occupation and possession prior to 1 December 1922; and a claim based on continuation of native title as at 1 December 1922. (It is said that the former claim is founded on an assertion that Daniel MacGregor and others occupied and possessed the land concerned and in consequence had, by 1848, when Daniel MacGregor was 12 years old, accrued a fee simple interest in the area.)

39. [220]

    The second respondent says that the existence of a fee simple interest (whether based on adverse possession in 1848 or subsequently or a transfer or grant) is incompatible and irreconcilable with an assertion as to the continued existence of native title in 1922 when, on this part of the case as now proposed, the native title rights are said to have been extinguished by the appropriation or resumption of land. The second respondent argues that the interest in fee simple under the common law acquired by animus possidendi (intention to exclude the whole world, including the documentary owner from the land “so far as is reasonably practicable and so far as the processes of the law will allow”) is the very interest that would have defeated the possible existence of native title upon the fee simple interest coming into existence (referring to Powell v McFarlane (1977) 38 P&CR 452 at 471-472 per Slade J, approved in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 437; [2002] UKHL 30).

40. [221]

    It is thus said that the alternative forms of relief sought are incompatible and inherently contradictory; and that the applicant’s submissions on this issue fail to address how the intersection of rights which owe their respective existence and content to separate legal systems can be propounded concurrently and consistently. It is further said that the suggestion that the applicant might hold interests in the land on trust is not explained in sufficient detail to be capable of resolving the inconsistency.

41. [222]

    Third, as to the reliance placed by the applicant in submissions and in the proposed points of claim to the consent determination of native title in Barkandji (No 8), the second respondent says that the content of that determination, read with what is known of the claim now proposed in these proceedings, adds to (rather than dispels) its concerns, for the reasons set out in the second respondent’s submissions (which it is not necessary here to extract). Broadly speaking, the second respondent’s complaint is that: the composition, functions, rights and obligations of the Maraura People are unspecified and do not require specification in the determination; the assertion now made in the proposed points of claim (that possessory title and native title rights within the Lake Victoria area were held by and/or for the Maraura People) seems to depart from the arrangement put forward and recognised in relation to land surrounding Lake Victoria in the said determination; that the Barkandji and Malyangapa People are described in the Barkandji and Malyangapa determination as persons descended from any of 39 named ancestors whereas the proposed points of claim describe the Maraura People as descendants of 25 named ancestors (only three names being common to both lists – those being that of Daniel MacGregor, Naanya and Harry Mitchell); and hence the basis and extent of any consensus as to group identity and composition amongst persons identified as belonging to (or omitted from) the Maraura group is unclear; and that the applicant is not one of the persons who was authorised under ss 61 and 251B of the Native Title Act in relation to the application that led to the Barkandji (No 8) determination. As to the last of those matters, it is said that the authority by which the applicant now puts herself forward as a trustee or representative applicant (and her acceptability to beneficiaries or group members) is unexplained.

42. [223]

    The second respondent notes that the native title rights and interests recognised in the Barkandji (No 8) determination are, pursuant to orders made concurrently with a determination held by Barkandji Native Title Group Aboriginal Corporation ICN 4740 (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)), held in trust for the common law holders pursuant to s 56(2)(b) of the Native Title Act. While the second respondent does not suggest that there is a requirement that that entity be consulted or involved in claims for compensation, complaint is made that it is unclear whether that entity (or any other person who may, on the applicant’s proposed case, be entitled to compensation) is aware of or approves the course the applicant proposes.

43. [224]

    The second respondent further argues that there is a lack of connection between the claim that the applicant seeks to assert in the content of the determination of native title made in respect of land adjacent to Lake Victoria and referred to in the applicant’s submissions.

44. [225]

    It is said that the manner in which the claim is proposed to be put (particularly insofar as it touches on the existence of native title) gives rise to questions as to whether matters to be raised are within the exclusive jurisdiction of the Federal Court (and High Court) in accordance with s 81 of the Native Title Act; and that this in turn warrants a form of application “which incorporates boundaries upon the nature of the relief sought”. The second respondent appears to accept that the proposed proceedings are not applications for compensation under ss 17, 23J or 61 of the Native Title Act but nevertheless suggests that it is possible (and perhaps likely) that the proceedings will involve questions as to the nature and extent of native title rights and interests as at 1 December 1922 including the determination of matters of the kind required in a determination of native title made in conformity with s 225 of the Native Title Act.

45. [226]

    In response to the submissions by the first respondent (at [39]) and the second respondent (at [49]-[50]) that the relief sought in the proposed orders in the amended application is inconsistent and incompatible, the applicant makes the following submissions.

46. [227]

    The applicant says she is seeking leave to file an application to claim compensation for the resumption of possessory title or, in the alternative, resumption of native title rights. She submits that there is no inconsistent allegation of fact. It is said that the proof of an adverse possession will not cause the applicant to lead any evidence that is inconsistent with the existence of native title rights; that the claims are based upon the applicant’s ancestors’ possession and use of the lands and waters and are factually consistent. In that regard it is submitted that the claims do not offend r 14.18(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

47. [228]

    The applicant says that, to the degree that possessory title is inconsistent with some or all native title rights and interests, those pleadings are in the alternative and permitted by r 14.18(2) of the UCPR.

48. [229]

    As to the argument of the respondents (at [41]-[43] and [51]-[53] of their submissions respectively) that there is no basis to suggest that native title rights and interests existed in the land the subject of the application and/or that the holder of any such rights is uncertain; the applicant says that the establishment of native title rights and interests and the peoples in whom those rights reside is a matter for evidence.

49. [230]

    The applicant says that, as it stands, the second respondent was a party to proceedings (at an earlier point) in which the first respondent consented to a determination that native title rights and interest exist or existed in the land adjacent to the Gazettal area. It is said that the group of people identified by the applicant as the people entitled to compensation are people descended from ancestors named in the determination, and the sub-group identified in the draft points of claim as the group entitled to compensation in 1922 have been also named in the determination. The applicant submits that the native title claim is far from speculative.

50. [231]

    As to the argument by the first and second respondents (at [43] and [51] of their submissions, respectively) that to claim compensation for resumption of native title rights and interests the applicant must have authority to act in a representative capacity and that she lacks that authority, the applicant says that the first respondent has misconstrued the claim for compensation for resumption of native title rights.

51. [232]

    The applicant says that the application for compensation for resumption of native title rights and interests is made pursuant to the Public Works Act, not the Native Title Act. It is said that there is no requirement under the Public Works Act for proceedings to be brought with the authority of any other person. For similar reasons, the applicant says that the second respondent is wrong to suggest that the applicant’s claim touches on the exclusive jurisdiction of the High Court and the Federal Court under s 81 of the Native Title Act. It is submitted that that provision is concerned only with “applications filed in the Federal Court that relate to native title”; and that an application for compensation under the Public Works Act is not such an application. The applicant says that if her grandmother, Alice Mary Mitchell, was not entitled to compensation for resumption of a possessory title, she was entitled to compensation for resumption of the native title rights and interests she held.

52. [233]

    As to the first respondent’s argument (at [44] of its submissions) that the applicant has failed to explain the basis on which she argues that native title rights and interests were property rights capable of resumption and therefore compensation under the Public Works Act, the applicant says that the submission that the extinguishment of native title by the 1922 Gazette Notice under the Public Works Act, made by the first respondent should be rejected. It is said that, in essence, it proposes that the term “owners” in s 101 of the Public Works Act excludes native title holders while on its terms it extends to land that is “alienated by or not the property of the Crown’’.

53. [234]

    It is noted that at [45] of its submissions the first respondent argues that the amendments sought are beyond the scope of the leave granted by Biscoe J in the Lawson LEC Proceedings. In that regard, the applicant relies on her primary submissions in relation to the scope of the leave granted by Biscoe J.

54. [235]

    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.

55. [236]

    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.

56. [237]

    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. [238]

   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. [239]

   Therefore, I make the following orders:

   1. (1)

      The questions for determination be answered as follows:

   2. (2)

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

   3. (3)

      Dismiss the proceedings with costs.