Lawson v South Australian Minister for Water and the River Murray [2014] NSWLEC 189 | Case summary

DISCRETION 17The Minister alternatively submits that, in the exercise of the Court's discretion under s 102, the application should be dismissed for two reasons: (a)There is no prima facie basis for the applicant's assertion that she has a cause of action. There is no evidence of adverse possession ripening in 1848, there is an assertion only; and there is no evidence of the passing of the possessory title between her great grandfather Mr Magregor and the applicant's paternal grandmother between 1848 and 1922. (b)The purpose of the time limit is to afford protection against stale claims. The evidence does not justify an extension of time of some 92 years. 18As to the first reason, the applicant submits that those details will be provided in the proposed s 102 notice which will specify the "nature of the estate or interest of the claimant" in the land the subject of the acquisition, and should not be required for this application. 19The Minister did not adduce evidence except for tendering a copy of the 1922 Government Gazette in which the acquisition was effected. 20The evidence in the applicant's case is unchallenged and I accept it for the purpose of the application before me. In considering the applicant's evidence, there should be taken into account that this proceeding is in Class 3 of the Court's jurisdiction where the Court is not bound by the rules of evidence: s 38(2) Land and Environment Court Act 1979. In the applicant's affidavit, she gave sketchy evidence as to the basis of her claim, summarised at [1] above, and says that she did not become aware of the issue of whether her great grandfather acquired a good possessory title in 1848 until December 2012 when she became aware of an academic paper written by Mr Dengate. In those respects, she said in her affidavit: 3. I am the great granddaughter of Mr Dan Magregor. My great grandfather, Mr Dan Magregor, was born prior to 1848 in the vicinity of the area covered by the application. 4. Upon my return from Cootamundra Girls Home I was informed by my family of the prior passing of my father and that my mother remained infirmed at Bloomfield Hospital and where she also unfortunately subsequently passed not long after. I still hold fond memories of my parents from the time before my and my younger sibling's removal and separation into Cootamundra Girls Home and Kinchela Home for Boys. 5. It was often reinforced to me by my parents prior to my placement at Cootamundra Girls Home, and I particularly recall on wagon travel to and in the vicinity of the area covered by the application, that our family owned land and waters including those covered by the application. I had always believed during my placement at Cootamundra Girls Home that I would be returning to the lands and waters owned by my family. 6. In the absence of my parents upon my return from Cootamundra Girls Home I thus resided with my paternal grandmother, the daughter of Mr Dan Magregor, for two years leading up to her passing in 1956 at aged 104 years. I still hold many fond memories of my grandmother and the discussions we had together. 7. During my time in residence with my grandmother she often spoke to me about how, before the European pastoralists and graziers first came to the area with sheep or wheat, her parents and grandparents and great grandparents, along with other members of my extended ancestral family, used to for example grow grains and farm the kangaroos and harvest the produce of waterways and lakes. 8. During my time in residence with my grandmother she often reinforced into me the belief that her parents had passed their ownership of land and waters to her and accordingly our family owned land and waters including those covered by the application. 9. As a result of that belief of ownership I contested my attempted forced physical eviction by the Wentworth Shire Council in 1981 from my humpie built on a crown reserve. I was quoted at the time in a local media publication questioning how could I [sic] be a trespasser on my own land. Subsequently in 1982 I successfully, in Summons Matter No. 22 heard in the Wentworth Magistrates Court, defeated the eviction notice previously issued upon me in 1981 by the Wentworth Shire Council. 10. In December of 2012 I was [sic] first became aware of a paper which refers to the area of lands and waters covered by the application and which paper indirectly raises the issue of a good possessory title having ripened in 1848 in favour of my paternal great grandfather. The referred to paper is attached and marked as APPENDIX A. 11. I verily believe that in 1848 my paternal great grandfather, Mr Dan Macgregor [sic], without written permission, title, lease or licence, had, with a clear intention to possess, believing himself to be a true owner, exercised control over the area covered by the application for sixty years. 12. In January 2013 for the first time I became aware of the historical provisions within the NSW Public Works Act relating to the area covered by this application. In January 2013 my son, Mr Phillip Lawson, informed me of the results of further research he had conducted subsequent to December 2012 with the author of the previously referred to paper, Mr Mark Dengate, in relation to the historical provisions of the NSW Public Works Act and its application to the area covered by the application. 13. I understand that in 1922 the area Lake Victoria was taken/acquired by gazette notification pursuant the NSW Public Works Act and a freehold title over the area of land and waters covered by this application was granted to the constructing authority (currently the South Australian Minister for Water and the River Murray). 14. I am of the understanding, pursuant [sic] the NSW Public Works Act of the period, that an option to claim for compensation may be available at the discretion of [sic] Court after 90 days has elapsed from the date of the gazette notification of resumption in 1922 of the area covered by this application. 21The applicant recounts that in early 2013 she and her son lodged a notice of a claim for compensation under the Public Works Act with the Constructing Authority, which rejected it in June 2013 because it was not made within 90 days from publication of the gazetted notification of the resumption as required by s 102 of the Public Works Act. 22The academic paper by Mr Dengate referred to in, and attached to, the applicant's affidavit, includes the following history: (a)Physical European contact with the region commenced when the junction of the Murray/Darling Rivers was "discovered" by Charles Sturt in January 1830. Sturt encountered 200 Aborigines and was confronted by a large fishing net strung completely across the Darling River. (b)In 1838 cattle were first driven overland from NSW to Adelaide and arrived at the Darling/Murray junction. (c)In 1841 up to 60 lower Darling Aborigines were killed at Lake Victoria by mounted horsemen. (d)Lake Victoria is an important cultural site to indigenous peoples of the lower Darling. (e)In 1844 exploration of the Lower Darling was undertaken by Edward John Eyre. His report rejected the commonly held notion that the Aborigines were destitute of any fixed place of residence, having no pursuits to confine them to any particular locality, or to cause them to congregate permanently in the same district. Eyre stated "On the contrary, all their habits have an opposite tendency". (f)In 1845 there was a small European population in the area limited to tents and a few bark/log huts around the junction and occasional camps of those travelling overland with stock or explorers. (g)In 1853 the first paddle steamer got to the junction. 23Mr Dengate cites R v Steele [1834] NSWSupC 111 as identifying 1848 as being the earliest possible date at law for a person to successfully claim possessory title to Crown land in NSW. 24Mr Dengate concludes (p 14): On the basis of the foregoing material included in this paper, the lower Darling region was part of the lands taken possession of by the Crown in January 1788 under the doctrine of Terra Nullius and that, in January 1848, still remained unsurveyed "wastelands" of the Crown. On the basis of the foregoing material included in this paper, as at January 1848, the Crown's indigenous subjects of the lower Darling, without written permission, title, lease or licence, had, with an intention to possess, exercised control over a majority of the Lower Darling region for sixty years. It follows, on the basis of the foregoing material included in this paper, that the Crown's indigenous subjects of the lower Darling were amongst Australia's first squatters and in 1848 may have been able to establish a good possessory title under English law. 25The applicant's evidence quoted at [20] above records that the applicant lived with her grandmother for two years prior to her grandmother's death in 1956 at the age of 104. A death certificate confirms that her grandmother, Mrs Mitchell, died in 1956 as a widow, having had 12 children. An extract from a document described as "Martin 1997 - Lake Victoria EIS" indicates that the applicant's grandmother belonged in a broad sense to "Nhanya's mob" of Aborigines, which was brought in from the bush. According to this evidence, her great grandfather Dan Magregor (or McGregor) was instrumental in persuading them to move in from the bush and lived with them after they were brought in. 26Under the Imperial statute called The Crown Suits Act 1769 (Nullum Tempus", 60 years adverse possession against the Crown was sufficient to pass title to the adverse possessor. In The Attorney General v Love (1896) NSWR 16 the Supreme Court held that this Act was in force in the colony of New South Wales, and that it had correctly been assumed to be in force in the colony in a number of Supreme Court decisions dating back to 1849, when the colony was but 61 years old. The Privy Council, on appeal, confirmed the Supreme Court's decision: Attorney-General of New South Wales v Love [1898] AC 679. 27The even earlier decision in R v Steele (1834) (referred to at [23] above) was to the same effect. In that case the Crown sued to recover possession of land at the northern end of Macquarie Street, Sydney. There was an issue as to whether the defendant had acquired title by adverse possession. In summing up the case to the jury, Forbes CJ noted that when New South Wales was taken possession of in the name of the King (ie in 1788), the land in the colony vested in the King, and that under the Nullum Tempus Act the defendant could not claim title by an uninterrupted adverse possession against the Crown in less than 60 years thereafter (ie 1848). 28In my view, the evidence before the Court is sufficient to show that the applicant's claim has some substance, even though it falls well short of proof of a prima facie case that the applicant has a claim to compensation. I do not think that more is essential on this application for an extension of time. I take into account that s 102(a) requires that "the nature of the estate or interest" is to be given to the Constructing Authority at the next stage of the process if this application for an extension of time is granted, and that under s 103 the Constructing Authority may thereafter determine whether a "prima-facie case for compensation is disclosed". The Act does not specify that a prima facie case must be shown on the current application. While a manifestly hopeless case would not excite the exercise of the Court's discretion to extend time, I do not think that the present case should be so described at this stage on the limited evidence available to the Court. 29The first respondent submits that the Court should not exercise its discretion under s 102 to extend time by 92 years having regard to the considerations identified by McHugh J In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541 at 551-554. Although that case was dealing with an extension of time under the Limitation of Actions Act 1974 (Qld), the salient points in it tending to favour the submission are these (at 551): "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods"; "where there is delay, the whole quality of justice deteriorates"; "Prejudice may exist without the parties or anybody else realising that it exists...it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed"; "A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued". Four broad rationales for limitation periods were identified (at 552): relevant evidence is likely to be lost; it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed; people should be allowed to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and the public interest requires that disputes be settled as quickly as possible. However, "The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case" (at 553). 30These are very weighty considerations in the present case. A claim of possessory title based on adverse possession that ripened in 1848 presents difficult evidentiary problems today. The evidence must establish both actual possession and an intention to possess: Casson v Leichhardt Council [2011] NSWLEC 243, (2011) 186 LGERA 34 at [88] (Biscoe J); Jones v State of Queensland [2007] QSC 267 at [14-17] (Muir J). The difficulty in locating evidence in 1922 is compounded by the subsequent 92 year delay. A claim of succession from those who had possessory title to the applicant must be shown: Jones v State of Queensland at [13]. 31On the other hand, in my opinion, the Court's discretion should take account of the fact that this is an Aboriginal land claim and its context. The context includes the history of indigenous dispossession and disadvantage, including suppression and deprivation, in this country since European settlement (Bugmy v The Queen [2013] HCA 37, (2013) 249 CLR 571) and the relatively recent, nascent recognition by the courts that possessory title may have a role to play in land title claims by indigenous people. 32By common acknowledgement, Aboriginal people "have suffered substantial injustice and loss consequent upon the deprivation of the loss of their land following the settlement of Australia": Minister for Natural Resources v New South Wales Aboriginal Land Council and Anor (1987) 9 NSWLR 154 at 157 per Kirby P. The New South Wales Parliament has declared, in the preamble to the Aboriginal Land Rights Act 1983, that: (1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation 33Until 1992 the possibility of Aboriginal people having paramount native land title was contrary to the common law: Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1; Wik Peoples v Queensland [1996] HCA 40, (1996) 187 CLR 1. The Mabo decision recognised the entitlement of indigenous people in Australia to a form of native land title which, in cases where it had not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands: at 15. The recognition required the overruling of the common law doctrine of terra nullius. The High Court in Mabo reversed earlier court decisions and decided that the acquisition of Australia in the name of the British Crown did not necessarily extinguish native title rights. Hence the Crown's radical title did not necessarily confer full beneficial ownership of the land: at 52, 57 per Brennan J. 34In Mabo, Toohey J acknowledged obiter the possibility of a claim to possessory title by Aboriginal persons in the context of European settlement as an alternative to a claim to traditional title: at 207, 214. 35In Jones v State of Queensland [2000] QSC 267 at [15], [16] Muir J followed Toohey J in Mabo. In Jones Aboriginal people, in an action commenced by writ of summons, filed a statement of claim to possessory title over large areas of land alleged to have been in the possession of their ancestors at and after European settlement. The defendant applied for the writ of summons to be set aside, alternatively that the proceedings be stayed or the statement of claim struck out, on the ground (among others) that the statement of claim did not disclose a good cause of action. Muir J struck out the statement of claim because it failed to plead necessary material facts. However, his Honour held that it was not appropriate that the writ of summons be set aside or the action stayed because the plaintiffs may well be able to articulate claims which meet the tests applicable in a summary judgment application: at [40]. 36In the Canadian case of Afton Band of Indians v Attorney General Nova Scotia (1978) 85 DLR (3rd) 454, a large Indian band sought under statute a certificate of title based on adverse possession for land its members had occupied for over 100 years, though it had been granted by the Crown to a particular person in 1821. The Supreme Court of Nova Scotia found that various members of the band had for well in excess of 60 years performed acts of adverse possession, and that title vested at some stage in individual members of the band as tenants in common, who were no doubt predecessors of the present members: at [31]. However, the court dismissed the action because, on the evidence before the court, it could not determine who those individuals were; it could not conclude that title vested in all present members of the band; and although it may be that some present members of the band acquired title by possession through their predecessors, that fact had not been established. The court held that the band, as such, had no standing to sue because the relevant statute provided that only a "person" could bring such an action, and a band of Indians is not a "person". 37Thus, there has been a relatively recent, nascent recognition that possessory title might have a role to play in land title claims by indigenous people. 38Viewed in that context, the Court's discretion should also take into account that the applicant only became aware in 2013 that she had a potential right to lodge a notice under the Public Works Act if an extension of time is granted, and thereafter proceeded reasonably expeditiously. 39Weighing up all the considerations, on balance I come down on the side of exercising the Court's discretion in favour of the applicant. 40Section 102 provides that an application such as this is "at the cost of" the applicant. However, understandably, the respondents have not sought a costs order against the applicant. In the circumstances, I do not propose to make a costs order.

Lawson v South Australian Minister for Water and the River Murray

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