Lawson v Minister for Environment & Water

Solicitors: Gilbert + Tobin (Appellant) Crown Solicitor of South Australia (First Respondent) Crown Solicitor of New South Wales (Second Respondent) File Number(s): 2020/106578 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 186 Date of Decision: 10 March 2020 Before: Ward CJ in Eq File Number(s): 2019/00144321

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the judgment] The appellant, Mrs Dorothy Lawson, commenced proceedings the subject of this appeal against the respondents, the Minister for Environment and Water (SA) and the State of New South Wales, seeking compensation under the Public Works Act 1912 (NSW) for the resumption of land in an area of New South Wales known as the Lake Victoria area (the Lake Victoria area). In 1914, an agreement (the Agreement) was reached between the Commonwealth and the States of New South Wales, Victoria and South Australia to provide, among other things, the Lake Victoria area in NSW to be water storage for the benefit of South Australia. Clause 55 of the Agreement provided that New South Wales would transfer and vest in South Australia an estate in fee simple in the Lake Victoria area. The Agreement was subsequently ratified in New South Wales by the River Murray Waters Act 1915 (NSW) (the Act), s 18 of which provided that the Lake Victoria area was "hereby vested in South Australia for an estate of fee-simple". In 1922 the land was resumed under the Public Works Act 1912 (NSW). The appellant sought compensation as a descendant of the holders of a possessory or native title which she asserted existed at the time of the 1922 resumption. The respondents contended that s 18 of the Act had extinguished that title and any other subsisting interest in the land. In these circumstances the following questions were ordered to be answered:

1. Was the land the subject of this appeal vested in South Australia for an estate in fee simple under s 18 of the Act on commencement of that Act on 31 January 1917?
2. If the answer to question 1 is 'Yes': a. is the consequence of the vesting by the Act that any and all interests in the land to which s 18 of the Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the Act? And b. was the vesting of the land by the Act a 'previous exclusive possession act' for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)? The Court allowed the appeal and answered question one in the negative, finding instead that any rights held by the appellant were extinguished by the resumption and converted into a claim for compensation. Consequently, question two did not arise. Was the land the subject of the appeal vested in South Australia for an estate in fee simple under s 18 of the Act on commencement of that Act? Section 18 of the Act did not vest in South Australia an estate in fee simple in the land the subject of the appeal on commencement of that Act: [24] (Bathurst CJ); [48] (Basten JA); [58] (McCallum JA). Section 18 ratified the obligation in cl 55 of the Agreement and provided, in conjunction with other relevant provisions in the Act and the Public Works Act, a mechanism by which South Australia could obtain the fee simple. That mechanism conferred the power both to extinguish outstanding interests in the Lake Victoria area and to compensate those whose interest had been extinguished: [24] (Bathurst CJ); [57] (Basten JA); [58] (McCallum JA). It follows that any pre-existing rights held by the appellant were not extinguished by s 18 of the Act but by the resumption and, by virtue of the Public Works Act, were converted into a claim for compensation: [26] (Bathurst CJ); [50]-[57] (Basten JA); [58] (McCallum JA). Issues of statutory interpretation The purpose of the Act was to provide for the carrying out of the Agreement subject to divesting property interests in land with notice and an entitlement and mechanism of obtaining compensation: [19]-[23] (Bathurst CJ); [50]-[54] (Basten JA); [58] (McCallum JA). The construction of s 18 on which reliance was placed by the respondents would have the effect of depriving persons of vested property rights without compensation and would be contrary to the purpose of the Act. Section 18 did not clearly express such an intention: [25] (Bathurst CJ); [54] (Basten JA); [58] (McCallum JA). Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2010) 240 CLR 409; [2010] HCA 2; Tabcorp Holdings Ltd v Victoria [2016] HCA 4; (2016) 90 ALJR 376, referred to. While this Court's construction of s 18 may be inconsistent with the ordinary meaning of the words used in that section, it is consistent with the statutory purpose of the Act: [25] (Bathurst CJ). To say that the lands are "hereby vested" is to identify the effect of the section, not its time of operation. The effect of s 18 depends on the purchase or resumption of existing private interests in land. Accordingly, this Court's construction of s 18 is consistent with a literal reading of that section: [40]-[48] (Basten JA).

Judgment

1. BATHURST CJ: These proceedings have their origin in a matter that has plagued the Federation for years, namely, how to resolve the competing interests of the Commonwealth, New South Wales, Victoria and South Australia in water which flows into the Murray-Darling Basin.
2. On 9 September 1914 an Agreement (the Agreement) was reached between the Commonwealth and the States of New South Wales, Victoria and South Australia. The object of the Agreement was said to be the economical use of the River Murray and its tributaries for irrigation and navigation, and to reconcile the interests of the Commonwealth and the riparian States. The parties agreed that the Agreement was to be referred to their respective Parliaments for ratification. It will be necessary to refer to the Agreement in greater detail later in this judgment but one of the objects of the Agreement was to provide for an area in New South Wales known as Lake Victoria (the Lake Victoria area) for water storage for the benefit of South Australia. In particular, cl 55 of the Agreement provided that New South Wales would transfer and vest in South Australia an estate in fee simple in the Lake Victoria area.
3. The Agreement was ratified in New South Wales by the River Murray Waters Act 1915 (NSW) (the Act). Once again it will be necessary to refer to the Act in some detail but s 18 provided that the land mentioned in Sch B to the Agreement (the Lake Victoria area) "are hereby vested in South Australia for an estate of fee-simple".
4. By a Gazette Notice in the Government Gazette dated 1 December 1922 (Gazette Notice) (New South Wales Government Gazette, No 166, 1 December 1922, at 6309), resumption of the Lake Victoria area was notified, the Gazette Notice stating the land vested in South Australia (the resumption). The Gazette Notice was in the following terms: "It is hereby notified and declared by His Excellency the Governor, acting with the advice of the Executive Council, that so much of the land hereunder described as is Crown Land has been appropriated, and so much thereof as is private property has been resumed, under the Public Works Act, 1912, for the following public purpose, namely, the construction of the Lake Victoria Works referred to in the River Murray Waters Act, 1915, and is vested in South Australia, for an estate in fee simple for the purposes of the River Murray Waters Act, 1915, and Acts amending the same."
5. In 2003 the appellant commenced proceedings seeking a declaration of Native Title and compensation under the Native Title Act 1993 (Cth), Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 (on appeal Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308). The primary judge has set out in detail the reasons of Whitlam J at first instance in those proceedings and it is unnecessary to repeat them. On appeal to the Full Court of the Federal Court, the Court, after referring to the resumption, the provisions of s 16 of the Act, and ss 42, 43 and 44 of the Public Works Act 1912 (NSW), made the following comment: "[28] The effect of these provisions was that upon notification of the appropriation and resumption in the Gazette, the claim area vested in South Australia for an estate in fee simple in possession. In our view, the primary Judge was correct to conclude that the River Murray Waters Agreement of itself had no legislative force and did not confer upon, or reserve to, third parties any proprietary rights in the claim area. Nor was there anything in the legislation to give the Agreement that effect. Consequently, nothing in cl 57 of the Agreement could detract from the fact that the notification vested the fee simple estate in the claim area in the Crown in right of South Australia. It follows that under the general law any native title over the claim area was extinguished and that the Native Title Act and NTA (NSW) operated in the manner described by the primary Judge."
6. Thereafter the appellant commenced the proceedings the subject of this appeal seeking compensation under the Public Works Act for the resumption of the land referred to in [4] above, claiming as descendants of the holders of possessory title which she asserted existed at the time of the resumption. Somewhat inconsistently with the approach taken by them in the Federal Court proceedings, the respondents contended that s 18 of the Act extinguished that title and any other subsisting interest in the land. In these circumstances the following questions were ordered to be answered: "1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917? 2. If the answer to question 1 is 'Yes': a. is the consequence of the vesting by the RMW Act that any and all interests in the land to which s 18 [of] the RMW Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the RMW Act? And b. was the vesting of the land by the RMW Act a 'previous exclusive possession act' for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?"
7. Her Honour answered each question in the affirmative and, as a consequence, dismissed the proceedings. The appellant has appealed from her Honour's decision.
8. I have had the advantage of reading the judgment of Basten JA in draft. I agree with him that the appeal should be allowed. These are my reasons for that conclusion.

The Agreement

1. I have set out the objects of the Agreement at [2] above. The Agreement, in summary, provided for work to be carried out under the auspices of a Commission, "The River Murray Commission" (the Commission). Part II, cl 5 of the Agreement provided that the Commission will consist of four Commissioners, one each appointed by the polities who are parties to the Agreement.
2. Clause 20 set out the works to be provided for under the Agreement. They included provision of a system of storage at Lake Victoria. Clause 21 identified the work to be carried out by each of the governments of New South Wales, Victoria and South Australia.
3. Clause 23 provided for the governments of New South Wales, Victoria and South Australia to prepare and submit to the Commission for approval the general scheme of work to be undertaken by them under the Agreement. Clause 24 provided that construction both of the storage works, the weirs and locks provided for shall be commenced "as soon as may be" after the Agreement came into effect, and so far as is reasonably practical the Lake Victoria works be completed within four years.
4. Clause 29 is of some relevance; it provided as follows: "29. A contracting Government within whose State any works for the purposes of this Agreement are to be or are being or have been constructed by another Contracting Government or constructing authority shall grant to such other Contracting Government or constructing authority all such powers, licences, and permissions in and to the use of or with respect to its territory as may be necessary for the construction, maintenance, operation, and control of such works in addition to the powers of a constructing authority and for carrying out any operations authorised by this Agreement."
5. Part IV of the Agreement provided for financing the works. It stated the estimated cost was £4,663,000, of which the Commonwealth was to contribute £1 million and each of New South Wales, Victoria and South Australia £1,221,000. It was estimated the cost of the Lake Victoria works was £205,000.
6. Part VI of the Agreement dealt with the distribution of waters. Clause 44 declared that the provisions of that Part (cll 45-51) were not to take effect until the Lake Victoria and Upper Murray storage works were completed or until seven years from the date the Agreement came into effect, whichever was the earlier. Clause 49 provided for the minimum quantity to be allowed to pass for supply to South Australia to include an amount sufficient to fill Lake Victoria and to maintain a regulated supply of water from that outlet.
7. Part VII of the Agreement provided for the Lake Victoria works. The provisions are of importance and it is convenient to set them out in full: "54. The States of New South Wales and Victoria, so far as they can do so and as may be necessary in pursuance of this Agreement, will authorise and facilitate the construction and maintenance and the use by the State of South Australia of the Lake Victoria Works mentioned and described in Schedule A to this Agreement. 55. To the end and for the purposes mentioned in the next preceding clause of this Agreement the State of New South Wales will transfer to and vest in the State of South Australia for an estate in fee simple, subject to the conditions hereinafter expressed, the lands mentioned and described in Schedule B to this Agreement. 56. After the commencement of the Lake Victoria Works, the State of South Australia may at all times divert into Lake Victoria for impounding or storing therein the waters of the River Murray flowing at the site or sites of the offtake or offtakes for diversion into Lake Victoria, except so much of such waters as under this Agreement New South Wales or Victoria shall have allowed to pass down the river for diversion supply or use to or in their respective territories, or as may be required for the purposes of this Agreement at all places below any such site. 57. Subject to this Agreement and to the Acts ratifying the same and to any right at the date when this Agreement comes into effect lawfully exercisable by an occupier of land on the bank of the said lake to use the water being in the said lake for domestic purposes or for watering cattle or other stock, or for gardens not exceeding five acres in extent used in connection with a dwelling house, and to the general right of all persons to use such water for domestic purposes or for watering cattle or other stock at places on such lake to which at the said date there is access by public road or reserve, the water impounded or stored in Lake Victoria shall be devoted to such uses as may be determined by the Government of South Australia, which, subject to any directions of the Commission, may at the times and in the quantities it thinks proper, release such water for conveyance by the channel of the River Murray to the eastern boundary of the State of South Australia: Provided that the water so stored shall be used primarily for the purpose of aiding to maintain the regulated supplies of water at Lake Victoria outlet provided for in clause forty-nine of this Agreement: Provided also that the State of South Australia, subject to this Agreement, will at the request of the State of New South Wales make provision where necessary for and permit the reasonable use of the waters of the said lake by occupiers on the settlement of lands of a total area not exceeding 200,000 acres in the vicinity of Lake Victoria for domestic purposes and for watering their cattle and other stock: Provided further that if access to the watering-places aforesaid by public road or reserve be interfered with by the construction of the said Lake Victoria Works, the State of South Australia will, on the request of the State of New South Wales, provide such other watering-places in lieu thereof as shall not interfere with the said works."
8. It was not in issue in the appeal that the land in Sch B is that which I have described as the Lake Victoria area. It is also to be noted that the Agreement to transfer the fee simple contained in cl 55 was for the purpose of the construction, maintenance and use by South Australia of the Lake Victoria works.
9. The Agreement made no provision for the acquisition of outstanding interests in the Lake Victoria area. In an affidavit sworn by a Mr Andrew Dean Bell in the Federal Court proceedings and tendered in these proceedings Mr Bell provided a report which identified interests in land in the Lake Victoria area as including grants of freehold land which had arisen prior to the Agreement, which were subsisting at the time of the Agreement, and which were ultimately resumed by the resumption (see, for example, the grant to John Reid on 18 April 1872, the grant to William Crosier on 20 October 1880, the grant to Duncan Macpherson on 20 October 1880 and the grant to Australian Mercantile Land and Finance Company Limited dated 26 September 1911). To enable a grant of fee simple to be made to South Australia, each of these interests in the Lake Victoria area and other interests, depending on their terms, needed to be extinguished. The Agreement was silent as to how that was to be achieved.
10. It was in the context of the Agreement that the Act was passed.

The Act

1. It should be noted that the long title of the Act provides that it is an Act to ratify and provide for the carrying out of the Agreement. Corresponding Acts were passed by the Commonwealth and the Parliaments of South Australia and Victoria.
2. Section 5 of the Act ratified the Agreement and provided for it to take effect on the coming into force of the Act. Sections 6-13 dealt with the Commission in particular: Section 9 provided that, for the purpose of the Act, the Commission and a person authorised by it may enter any lands and have free access to all works.
3. Sections 14-16 deal with construction, maintenance and acquisition of land. Section 18 as I indicated at [3] above deals with the transfer of the fee simple of the Lake Victoria area to South Australia. Sections 14-16 and s 18 are in the following terms: "14. Subject to this Act and the agreement, the construction in New South Wales of any of the works therein referred to is hereby authorised; and any such work shall be an authorised work within the meaning of the Public Works Act, 1912. But section thirty-four of the said Act shall not apply in respect of any such work. 15. (1) The construction, maintenance, operation, and control, pursuant to this Act and the agreement, of works by or on behalf of the Government of New South Wales shall be carried out by the Minister for Public Works. (2) For the purposes of such construction the said Minister shall be the constructing authority within the meaning of the Public Works Act, 1912. (3) Land required for such works may, under and subject to the said Act, be appropriated, resumed, or purchased by the Governor. 16 . For the purpose of the construction, maintenance, operation, and control, pursuant to this Act and the agreement, of works by or on behalf of any contracting Government other than the Government of New South Wales - (a) such Government, or any authority or person thereto authorised by it, may exercise the like powers and privileges, but subject to the like conditions, as the Minister for Public Works may exercise for the construction, maintenance, operation, and control of works under this Act by or on behalf of the Government of New South Wales; and for the purpose of such construction shall be the constructing authority within the meaning of the Public Works Act, 1912. (b) the Governor, at the request of such Government, may under the Public Works Act, 1912, appropriate, resume, or purchase land required for such works. … 18. The lands mentioned in Schedule B to the agreement are hereby vested in South Australia for an estate of fee-simple, and may, subject to the conditions expressed in the agreement, be granted or transferred to any person appointed in that behalf by the Government of the said State."
4. Section 18 must be considered in the context of ss 14-16. In particular, it is to be noted that s 14 provides that works under the Agreement shall be authorised works within the meaning of the Public Works Act. Second, s 16 provides that when work under the Act is carried out by or on behalf of a contracting Government other than the Government of New South Wales, that Government is entitled to exercise the same powers and privileges as the Minister for Public Works may exercise for the construction, maintenance, operation and control of the works and shall be the constructing authority. Thus, for the purpose of the Lake Victoria area South Australia is the constructing authority for the purpose of the Public Works Act.
5. Further, in the case of the Lake Victoria works the effect of s 16(b) is that the Governor (of New South Wales), at the request of the Government of South Australia, may appropriate, resume or purchase lands required for such works. The statutory scheme thus invokes the Public Works Act. The relevant provisions are ss 42, 43 and 45 which provide as follows: "42. For the purpose of carrying out any authorised work, if the Governor directs that any land required for such work shall be taken under this Division of this Act, he may, by notification to be published in the Gazette and in one or more newspapers published or circulated in the police district wherein is situated the land the subject of such notification, declare that the land described in such notification has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed. An abstract of the land so appropriated or resumed, together with the purpose for which the same is required shall in every case be laid before Parliament, if in session at the date of such notification, within seven days after its publication in the Gazette; and if not, then within fourteen days after the commencement of the next ensuing session. 43. Upon the publication of such notification in the Gazette, the lands described or referred to in such notification shall forthwith be vested in the Constructing Authority on behalf of His Majesty for the purpose of this 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 incident thereto, or conferred by this Act, shall be vested in the Constructing Authority as a trustee. … 45. (1) The estate and interest of every person entitled to lands resumed under this Division of this Act or any portion thereof and whether to the legal or equitable estate therein shall by virtue of this Act be deemed to have been as fully and effectually conveyed to the Constructing Authority as if the same had been conveyed by the persons legally or equitably entitled thereto by means of the most perfect assurances in the law. (2) Every such estate and interest shall, upon the publication of such notification as aforesaid be taken to have been converted into a claim for compensation in pursuance of the provisions hereinafter contained. (3) Every person shall upon asserting his claim as hereinafter provided and making out his title in respect of any portion of the said resumed lands be entitled to compensation on account of such resumption in manner hereinafter provided."

The effect of section 18

1. Whilst as the primary judge pointed out the literal reading of s 18 of the Act contemplates an immediate grant of a fee simple, it does not have that effect at least to the extent that it is suggested that, of its own force, it extinguishes all prior interests held by other persons or corporations. Rather, it ratifies the obligation contained in cl 55 of the Agreement and provides, in conjunction with ss 14-16 of the Act and the relevant provisions in the Public Works Act, a mechanism by which South Australia can obtain the fee simple. That mechanism confers the power both to extinguish outstanding interests in the Lake Victoria area and to compensate those whose interest has been extinguished. In that manner, s 18 operates harmoniously with ss 14-16 of the Act, the inclusion of the works to be carried out as authorised works under the Public Works Act and the consequent grant of the power of resumption.
2. I appreciate that the construction which I have placed on s 18 of the Act may be inconsistent with the ordinary meaning of the words used in that section. However, when considered in light of its context and purpose, it seems to me that the meaning which I have attributed to the section, rather than what might be described as a literal meaning, is consistent with the statutory purpose. Further, the construction of s 18 on which reliance is placed by the respondents has the effect of depriving persons of vested property rights without compensation. In my view, taken in context, s 18 does not clearly express such an intention: see Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2010) 240 CLR 409; [2010] HCA 2 at [32]; Tabcorp Holdings Ltd v Victoria [2016] HCA 4; (2016) 90 ALJR 376 at [68].
3. It follows that any pre-existing rights held by the appellant were not extinguished by s 18 of the Act. To the contrary, any rights she held were extinguished by the resumption and by virtue of s 45(2) of the Public Works Act converted into a claim for compensation.
4. There are two other matters which I should mention. As I indicated, the approach adopted by the respondents in the present case is in effect the opposite to the approach adopted by them in the Federal Court proceedings. Because of the conclusion which I have reached, it is unnecessary to determine whether either the doctrine of res judicata or estoppel of the nature of that referred to in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 precluded the respondents from arguing that extinguishment did not occur as a result of the resumption. There was no issue estoppel because the effect of s 18 of the Act was not a matter necessarily decided in the Federal Court proceedings: see Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 at 532.
5. The second matter is that in the Court below the primary judge indicated that had she reached a different conclusion she would have permitted the appellant to amend her claim to add a new ground based on Native Title rights. It seems to me that although I have reached a contrary conclusion to her Honour, the question of whether the amendment should be granted and its terms is one that should be dealt with by her Honour or some other judge of the Equity Division to whom the proceedings are assigned.

Conclusion

1. In the result I would make the following orders: 1. Appeal allowed. 2. Set aside the orders made by the primary judge. 3. Answer the separate questions the subject of the appeal as follows: 1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917? Answer: No. 2. If the answer to question 1 is "Yes": a. is the consequence of the vesting by the RMW Act that any and all interests in the land to which s 18 [of] the RMW Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the RMW Act? and b. was the vesting of the land by the RMW Act a 'previous exclusive possession act' for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)? Answer: Does not arise. 1. Remit the further hearing of the proceedings to the Chief Judge in Equity or a judge nominated by her. 2. Order the respondents pay the appellant's costs of the appeal. 3. Costs of the proceedings in the Court below be determined by the judge responsible for the determination of the proceedings.
2. BASTEN JA: This case turned on the operation of a single brief section in a 100 year-old statute. The respondents submitted that the meaning of the words was clear and governed its operation. Such a strict textual approach invited attention to the well-known words of Judge Learned Hand warning against making "a fortress out of the dictionary". [1] There has been debate as to precisely what Judge Hand meant by the metaphor: was he concerned with the use of dictionaries in interpreting statutes, or was he concerned more generally with the function for which the dictionary was used, namely determining the meaning of individual words? If the latter, it is a wise warning as to the limits of strict textualism. In fact, the meaning of the provision, as will be seen, is not in doubt; nevertheless its operation is.
3. Pursuant to an extension of time granted by Biscoe J in the Land and Environment Court in 2014, [2] the appellant, Ms Dorothy Lawson, is seeking compensation for the extinguishment of a possessory title and native title rights and interests. The extinguishment occurred in either 1917 or 1922, when an area of land in New South Wales, including Lake Victoria and two small rivers linking it with the River Murray, was vested in the State of South Australia. The vesting occurred pursuant to an agreement between the Commonwealth and the three States having an interest in the flow of waters in the River Murray. The appellant asserts that the interests of her forebears (whether by way of a possessory title or a native title) were extinguished when the land was resumed under the Public Works Act 1912 (NSW). If that were so, a right to compensation arose under that Act.
4. In the course of resisting Ms Lawson's claim to hold extant native title rights and interests in proceedings brought in the Federal Court some 20 years ago, New South Wales and South Australia contended that all native rights and interests had been extinguished in the way that the appellant now asserts. They were successful in that submission and the claim under the Native Title Act 1993 (Cth) was dismissed. [3] However, in response to the appellant's reliance on that precise legal proposition, South Australia and New South Wales now assert that any interest the appellant's forebears may have had in the land was extinguished prior to the resumption of the land under the Public Works Act. That submission was upheld by the Chief Judge in Equity, being the judgment from which the appellant now seeks to appeal.
5. The appeal should be upheld, on two primary, but independent, bases. The first and simplest basis is that the submissions for South Australia and New South Wales misconceive the effect of the statutory provision upon which they rely.
6. The section in dispute appears in the River Murray Waters Act 1915 (NSW). The purpose of the Act was to ratify and give effect to the terms of an agreement, entered into by the Commonwealth and the States of New South Wales, Victoria and South Australia, as to the use of the waters of the River Murray. The agreement formed a schedule to the Act. [4] The Act itself contained four provisions (ss 14-17) under the heading "Construction and maintenance of works and acquisition of land." The critical provision relied upon by the respondents, under the heading "Lake Victoria", was s 18 which read as follows: 18. The lands mentioned in Schedule B to the agreement are hereby vested in South Australia for an estate of fee-simple, and may, subject to the conditions expressed in the agreement, be granted or transferred to any person appointed in that behalf by the Government of the said State. The respondents contended that this provision extinguished any native title rights and interests, or other possessory title held by the forebears of the appellant, in relation to the area identified as Schedule B to the agreement.
7. The argument in favour of this construction involved the following steps. First, leaving to one side the question of possessory title (which may or may not exist in relation to Aboriginal occupation of lands prior to European settlement [5] ), native title rights and interests are inherently fragile and subject to extinguishment by the exercise of the Crown [6] (i) of statutory powers to grant interests in land inconsistent with native title, and (ii) by appropriating land for public purposes inconsistent with native title, although in each case there must be a clear and plain intention to do so. [7] At a time when native title rights and interests were not recognised, such an intention would generally depend on a clear intention to extinguish all existing private interests in the land.
8. Secondly, a statutory vesting in a body politic or public authority was the conventional means for appropriating land for public purposes. [8] Thirdly, the vesting in South Australia of an estate in fee simple carried with it a right of exclusive possession which was inconsistent with the continued existence of native title rights and interests. [9] Fourthly, it followed that the effect of the statutory vesting of the Schedule B lands pursuant to s 18 of the River Murray Waters Act extinguished any extant native title rights and interests, and any possessory title held by the appellant's Aboriginal forebears.
9. The beguiling simplicity of this set of contentions concealed three flaws in the conclusion.
10. First, although we now understand that the title enjoyed by Indigenous peoples based on prior occupation of land survived the acquisition of sovereignty by the British Crown, [10] that was not understood in 1917 when the River Murray Waters Act was drafted. Nor was the concomitant susceptibility of native title to extinguishment in the manner noted above understood. No doubt these aspects of the common law, now reformulated and modified by statute, are relevant to the operation of the 1917 Act; they do not assist in determining the legislative intention in 1917.
11. Secondly, and by way of contrast, it was well-known in 1917 that the land broadly described in Schedule B to the agreement was, to a large extent, subject to Crown grants and leasehold interests held under the Western Lands Act 1901 (NSW), as then in force. It is not possible to envisage land, then in the ownership of New South Wales residents under titles granted by the State of New South Wales, being vested in another State by a mechanism which would necessarily destroy their interests and estates. Yet there is nothing in s 18 of the River Murray Waters Act which acknowledged that known interests in land would be destroyed by the immediate operation of s 18 upon enactment.
12. Thirdly, and consequentially upon the last consideration, the respondents' argument assumes that s 18 operated immediately the Act commenced, so as to vest the Schedule B lands in South Australia. Yet s 18 says nothing as to the time of its operation. To say that the lands are "hereby vested" is to identify the effect of the section, not its time of operation. All that is needed in order to give a sensible operation to s 18, in accordance with its terms, is to identify a prior step to be taken before it has effect, namely the purchase or resumption of existing private interests in the lands, and the appropriation of Crown lands.
13. This solution is available, not by way of implication or assumption, but pursuant to the express terms of the River Murray Waters Act. Reading the provisions consecutively provides the answer to the apparent conundrum as to the timing of the operation of s 18. The answer is to be found in ss 14-17. Section 14 provides as follows: 14. Subject to this Act and the agreement, the construction in New South Wales of any of the works therein referred to is hereby authorised; and any such work shall be an authorised work within the meaning of the Public Works Act, 1912. But section thirty-four of the said Act shall not apply in respect of any such work.
14. This provision is significant for present purposes because it not merely assumes the need to engage with the requirements of the Public Works Act, but provides the basis for the operation of that Act, excluding only s 34 which required every proposed work to be submitted to the Legislative Assembly (other than some minor works).
15. The agreement envisaged that works would be carried out by the government of New South Wales and by other governments. Section 15 provided that works being undertaken in New South Wales by or on behalf of the New South Wales government were to be carried out by the Minister for Public Works; the Minister was to be the "constructing authority" within the meaning of the Public Works Act and the relevant lands required for such works were to be appropriated, resumed or purchased by the Governor.
16. Section 16 dealt with the latter circumstance (that is, works that would be carried out by governments other than NSW) and provided as follows: 16. For the purpose of the construction, maintenance, operation, and control, pursuant to this Act and the agreement, of works by or on behalf of any contracting Government other than the Government of New South Wales - (a) such Government, or any authority or person thereto authorised by it, may exercise the like powers and privileges, but subject to the like conditions, as the Minister for Public Works may exercise for the construction, maintenance, operation, and control of works under this Act by or on behalf of the Government of New South Wales; and for the purpose of such construction shall be the constructing authority within the meaning of the Public Works Act, 1912. (b) the Governor, at the request of such Government, may under the Public Works Act, 1912, appropriate, resume, or purchase land required for such works.
17. Thus, the government other than that of New South Wales was identified as the "constructing authority" for the purposes of the Public Works Act. The deeming provision did not enable the other government to resume private land in New South Wales; that was a function to be exercised by the New South Wales Governor, but he was empowered to do so upon the request of the other government. (That the reference to "the Governor" in s 16(b) is a reference to the Governor of New South Wales follows (i) as a result of the logic of s 16, (ii) because the power of resumption under the Public Works Act is vested in the Governor of New South Wales and s 16 does not deem any other person to be the Governor for the purpose of that Act, and (iii) consistently with the implication of local reference then contained in ss 15(II) and 17 of the Interpretation Act 1897 (NSW).)
18. Section 17 provided for loans raised by the Governor for the purpose of purchasing or resuming land or carrying out works to be loans "for the public service of New South Wales within the meaning of the Inscribed Stock Act, 1902." This provision may be disregarded for present purposes.
19. Thus, putting to one side s 17 of the River Murray Waters Act, the next provision preceding s 18 allowed for the resolution of the dilemma as to the timing of the operation of s 18. Section 16 provided for the appropriation, resumption or purchase of lands for the purposes of works to be carried out by South Australia. It is possible that it applied to other works to be carried out by other governments, but that is not to deny its application with respect to schedule B lands. Indeed, the only transfer of land to another contracting government identified in the agreement, is that identified in cl 55 and schedule B. The agreement identified the purpose of the vesting of the land in South Australia as being to allow the South Australia (or a statutory authority) to construct and maintain a reservoir "at and about Lake Victoria" by providing weirs and locks at the conjunction of the River Murray and Rufus River and Frenchman's Creek, being the water courses which linked Lake Victoria to the River Murray. [11] Clause 55 of the agreement then provided: "55. To the end and for the purposes mentioned in the next preceding clause of this Agreement the State of New South Wales will transfer to and vest in the State of South Australia for an estate in fee simple, subject to the conditions hereinafter expressed, the lands mentioned and described in Schedule B to this Agreement."
20. By this method, the River Murray Waters Act provided for the resumption of private land and appropriation of Crown land in NSW, pursuant to the Public Works Act, for the purposes of another state government (in this case South Australia) carrying out works under the agreement; it then provided for the vesting of such land in South Australia, again for the purposes specified in the agreement. Section 18 did not state the point in time at which the vesting was to occur, because it did not need to do so. The structure of the legislation identified that time, being a time which was under the control of the South Australian government. The process of resumption and purchase of private lands and appropriation of Crown lands was to be undertaken at the request of the South Australian government, pursuant to s 16(b). Although s 16(b) conferred a power on the Governor to appropriate, resume or purchase land as requested, it was effectively a power coupled with a duty to act upon a request. No doubt there was some independent discretion to be exercised by the Governor, acting on the advice of the New South Wales Executive Council, to formulate an appropriate notice and identify which lands were reasonably required for the works specified in the agreement. Subject to that element of discretion, the proper understanding of the agreement and s 16(b) is that the Governor was obliged to act upon the South Australian request.
21. In the course of submissions in this Court, the parties were united in their view that this was specific and unusual, possibly unique, legislation. This view appears to have echoed an opinion expressed by Whitlam J in the Federal Court in dealing with a claim by the present appellant for recognition of her native title rights and interests in the area vested in the South Australian Government. Whitlam J stated that "[s]ection 18 is a very curious provision." [12] That comment was made in the course of concluding that all native title rights and interests were extinguished by a notification in the Gazette of 1 December 1922, published in accordance with the provisions of Public Works Act, that notification constituting a "previous exclusive possession act" for the purposes of the Native Title Act and thus validly extinguishing native title in the area of the resumption.
22. It may be doubted, however, that the drafters of the River Murray Waters Act saw s 18 as curious in any sense; rather, it confirmed, in the particular circumstances of the agreement, that which in other circumstances would have been the consequence of an appropriation or resumption under the Public Works Act 1912. Sections 42 and 43 of the Public Works Act had that effect, albeit with the result that the land vested in the New South Wales Minister, rather than in South Australia. Relevantly, those provisions stated: 42. For the purpose of carrying out any authorised work, if the Governor directs that any land required for such work shall be taken under this Division of this Act, he may, by notification to be published in the Gazette … declare that the land described in such notification has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed. … 43. Upon the publication of such notification in the Gazette, the lands described or referred to in such notification shall forthwith be vested in the Constructing Authority on behalf of His Majesty for the purpose of this 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 incident thereto, or conferred by this Act, shall be vested in the Constructing Authority as a trustee.
23. Section 44 provided that the effect of a notification relating to Crown land and land vested in an authority on behalf of the Crown for public purposes was to divest any estate extant at the date of such publication, cancel any dedication or reservation and "vest the said land ... in the Constructing Authority for the purposes mentioned and for the estate limited in [s 43]".
24. Section 45(1) stated that "[t]he estate and interest of every person entitled to lands resumed under this division of this Act … shall by virtue of this Act be deemed to have been … conveyed to the Constructing Authority". Section 45(2) stated that "[e]very such estate and interest shall, upon the publication of such notification … be taken to have been converted into a claim for compensation".
25. Provisions in the terms found in s 16 and s 18 were necessary, not merely to ensure that private lands were resumed, but that the land discharged of prior encumbrances would be vested in either South Australia or a statutory authority identified by the government of that State and that the vesting was not for the purposes of the Public Works Act, but for the purposes of the agreement ratified by the River Murray Waters Act. So understood, s 18 was necessary to give effect to cl 55 of the agreement; s 16 was a mechanism by which New South Wales, consistently with its own laws and procedures, could achieve that purpose.
26. That understanding of the operation of the River Murray Waters Act enabled New South Wales to comply with all its obligations under the agreement, without divesting its own residents of property interests in land without notice and without an entitlement and mechanism for obtaining compensation. The construction placed on s 18 by the respondents would fail to achieve this purpose; it should be rejected as an implausible construction of the critical provision.
27. In fact the notification published in the Government Gazette on 1 December 1922 itself purported to vest the land in the South Australia; whether that statement was otiose or effective in its terms need not be determined; the only question is whether the notification extinguished any pre-existing rights of the forebears of the appellant. That outcome, which applied equally to all interests in the Schedule B lands, held by persons in New South Wales, was an essential step in giving effect to the obligation to vest land in South Australia.
28. This construction is consistent with the reasoning of the Full Court of the Federal Court on the appeal from Whitlam J. [13] After referring to s 14 and s 16 of the River Murray Waters Act, and ss 42-45 of the Public Works Act, the Court stated: "[28] The effect of these provisions was that upon notification of the appropriation and resumption in the Gazette, the claim area vested in South Australia for an estate in fee simple in possession. In our view, the primary Judge was correct to conclude that the River Murray Waters Agreement of itself had no legislative force and did not confer upon, or reserve to, third parties any proprietary rights in the claim area. Nor was there anything in the legislation to give the Agreement that effect."
29. Accordingly, in principle and consistently with authority, the notification under the Public Works Act had effect to resume and extinguish any interests in the lands enjoyed by the forbears of the applicant and converted them into entitlements to claim compensation under that Act. On this basis the appeal must be upheld. I agree with the orders proposed by the Chief Justice.
30. McCALLUM JA: I agree that the appeal should be allowed. While the Chief Justice and Basten JA have stated different reasons for reaching that conclusion, I do not perceive any material inconsistency between those separate reasons. The Chief Justice has expressed a concern that the construction his Honour has placed on s 18 may be inconsistent with the ordinary meaning of the words of the section but considers, having regard to context and purpose, that that meaning (rather than a literal meaning) is to be preferred. Basten JA is not troubled by any perceived inconsistency between his Honour's construction and the ordinary meaning of the words of the section, taking the view that to say the lands are "hereby vested" is to identify the effect of the section, not its time of operation. On that understanding and based on a careful analysis of context and purpose, his Honour has reached the same conclusion. Each is, with respect, an orthodox application of accepted principles of statutory interpretation. To the extent that there is any difference between their Honours' understanding of the words of s 18, it has no practical significance in the application of those principles. On either analysis, the appeal should be allowed. I agree with the orders proposed by the Chief Justice.

Endnotes

1. Cabell v Markham, 148 F 2d 737, 739 (2d Cir 1945).
2. Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189.
3. Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308 (Wilcox, Sackville and Finn JJ), dismissing an appeal from Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127 (Whitlam J) ("Lawson FCA").
4. Legislation in similar terms was passed by each polity.
5. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 57 (Brennan J); [1992] HCA 23 (Mabo (No 2)).
6. Mabo (No 2) at 64.
7. Mabo (No 2) at 68.
8. Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879, 888 (Isaacs J); [1908] HCA 19.
9. Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Miriuwung Gajerrong case) at [204].
10. Mabo (No 2) at 48.
11. Agreement, cl 54 and Schedule A to the agreement.
12. Lawson FCA at [25].
13. See fn 3 above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2021