Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127

FEDERAL COURT OF AUSTRALIA

Lawson v Minister for Land & Water Conservation

for the State of New South Wales [2003] FCA 1127

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

Native Title Act 1993 (Cth) s 23B(2)

Native Title (New South Wales) Act 1994 (NSW) s 20(1)

River Murray Waters Act 1915 (NSW) s 16

Western Australia v Ward (2002) 76 ALJR 1098 applied

DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS

NG 6070 of 1998

DOROTHY LAWSON AND PHILLIP LAWSON ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS

NG 6167 of 1998

WHITLAM J

17 OCTOBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6070 of 1998

BETWEEN:	DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS

JUDGE:	WHITLAM J
DATE OF ORDER:	17 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceeding stand over to a date to be fixed for the purpose of making orders to give effect to the reasons for judgment published today.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6167 of 1998

BETWEEN:

DOROTHY LAWSON AND PHILLIP LAWSON

ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE

APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS

RESPONDENTS

JUDGE:	WHITLAM J
DATE OF ORDER:	17 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceeding stand over to a date to be fixed for the purpose of making orders to give effect to the reasons for judgment published today.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6070 of 1998

BETWEEN:	DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS
	NG 6167 of 1998
BETWEEN:	DOROTHY LAWSON AND PHILLIP LAWSON ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS

JUDGE:	WHITLAM J
DATE:	17 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In these two proceedings under the Native Title Act 1993 (Cth) (‘the Act’) a series of questions have been formulated for decision in advance of trial. The questions overlap because the area covered by the compensation application in proceeding no. 6167 of 1998 comprises the whole of the area over which the claim is made by the native title determination application in proceeding no. 6070 of 1998. Both applications were made prior to the 1998 amendments to the Act. Not all the applicants in the claimant application are applicants in the compensation claim, but each application states that it is also made on behalf of the Barkandji People. The questions stated raise for consideration, in turn, 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 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) (‘the NSW Act’).

2 None of the applicants appeared at the hearing, which then proceeded in their absence. Evidence for use in both proceedings was adduced by the NSW Minister for Land and Water Conservation (‘the NSW Minister’) who was, in relation to New South Wales, the State Minister for the purposes of the Act. In the claimant application the States of Victoria and South Australia appeared, as did Western Murray Irrigation Limited, the holders of certain grazing leases under the Western Lands Act 1901 (NSW) and two recreational fishermen. The Attorney-General of the Commonwealth also intervened in that proceeding. The Commonwealth of Australia was a party to the compensation application. All these parties contended that native title had been completely extinguished in the area covered by the applications. There is no representative Aboriginal/Torres Strait Islander body for any of that area, and New South Wales Native Title Services Limited (‘NTS’) appeared to contradict the extinguishment arguments.

3 The written description of the claim area in the application itself is not very informative. The area is described as ‘land and water known as Lake Victoria in the Parishes of Wangumma, Walkminga, Wannawanna, Victoria and Warpa in the County of Tara, New South Wales.’ The area’s geographic boundaries are not stated. However, two maps are attached, one of which is a drawing made in 1984 by the South Australian Engineering and Water Supply Department depicting the general layout of the Lake Victoria Storage. In addition, the applicants state that the area covered by the application ‘was vested in the State of South Australia (in fee simple) by Government Gassette (sic) 166, December 1922’ and that it is ‘utilised as a water storage area for usage as per the Murray Darling Basin Agreement 1983’. On 27 November 1997 the applicants’ representative wrote to the National Native Title Tribunal confirming that the area described in the Government Gazette was ‘in fact the area subject to the application’, but noting that ‘no private freehold land is to be included within the application area’.

4 Evidence was 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.

5 A copy of pages 6309 and 6310 of New South Wales Government Gazette, No. 166 dated 1 December 1922 was tendered through Mr Bell. It comprises a notification (‘the Gazette notification’) declaring 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.’

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

7 The second statute referred to in the Gazette notification, the River Murray Waters Act 1915 (NSW), was enacted to ratify and provide for the carrying out of an agreement made on 9 September 1914 between the Prime Minister of the Commonwealth of Australia and the Premiers of the States of New South Wales, Victoria and South Australia. The historical background to this agreement, popularly known as the River Murray Waters Agreement, is set out in a report prepared by Mr Flynn. A copy of the agreement was set out in the Schedule to the River Murray Waters Act, where it was defined (by s 4) simply as the ‘agreement’. I shall use the same term.

8 Clause 1 of the agreement provided that it was ‘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.’ Part II contained provisions relating to the appointment of the River Murray Commission. The works to be constructed were dealt with in Part III of the agreement. These comprised systems of storage on the Upper River Murray and at Lake Victoria, weirs and locks. By cl 21 of the agreement, works to be constructed at points between the mouth of the River Murray and Wentworth (which included the Lake Victoria works) were to be constructed by the Government of South Australia. Clause 27 provided that ‘works constructed by any Government under this Agreement shall be operated and controlled by such Government’. Importantly, cl 29 provided:

‘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.’

Each State’s entitlements to the distribution of the waters in the River Murray were spelt out in Part VI of the agreement. Specific provision was made in Part VIII for the Lake Victoria Works as follows:

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

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

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

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

The Schedules referred to in cls 54 and 55 were in the following terms:

‘SCHEDULE A.

A regulation reservoir, with a storage capacity of about twenty-two and a half thousand millions of cubic feet at and about Lake Victoria in the State of New South Wales, situate within three miles of the River Murray, and about thirty-six miles in a direct line below the junction of the River Murray with the River Darling, and about fourteen miles in a direct line above the eastern boundary of the State of South Australia, which lake covers an area of approximately thirty thousand acres, and is connected with the main stream of the River Murray by the Rufus River and Frenchman’s Creek.

Such weirs and locks across and in the River Murray, and such regulators as may be required for the purposes of the Lake Victoria storage, or of the navigation of the River Murray.

SCHEDULE B.

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

9 As I have mentioned, the River Murray Waters Act ratified the agreement. It made specific provision for the construction of the works referred to in the agreement and for the application of the Public Works Act 1912 (NSW) to the acquisition of land required for such works. I shall return to those provisions. However, first, it should be noted that the River Murray Waters Act also provided:

‘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 River Murray Waters Act commenced on 31 January 1917. The operation of s 18 is raised in the questions for decision.

10 Mr Jackson expressed his opinion about the extent of the area of land and waters referred to in Schedule B to the agreement. He said:

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

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

12 The reason for this difference appears from a report appended to Mr Flynn’s report, which gives an historical account of the construction of the Lake Victoria storage. This report was prepared in May 1984 by L J Schmitt of the South Australian Engineering and Wales Supply Department. (The drawing attached to the claimant application comes from this report.) In his report Mr Schmitt outlined how the works proposal actually approved by the River Murray Commission on 7 December 1918 allowed for a modification of Frenchman’s Creek to form an effective inlet channel to Lake Victoria. This involved cuttings in order to bypass large meanders in the creek and make a more direct route. Two channels, one 3606 metres long and the other 1536 metres long, caused the diversions in Frenchman’s Creek that Mr Jackson noted. Excavation work for these channels was commenced in August 1919 and completed in August 1922. The inlet channel was not, however, flooded until 1927.

13 Section 14 of the River Murray Waters Act provided that any work referred to in the agreement was to be an authorised work within the meaning of the Public Works Act and that s 34 of that Act (requiring a resolution of the Legislative Assembly to authorise work) was not to apply in respect of such a work. The River Murray Waters Act further provided:

‘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.’

14 The Gazette notification took effect on 1 December 1922 pursuant to Div 1 of Pt V of the Public Works Act, which relevantly provided:

‘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.

…

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-ways, 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.

44. Where the land taken is Crown land at the date of such publication, or is vested in any corporation or person on behalf of His Majesty, or for public purposes, by virtue of any statute, or is within the limits with reference to centres of population prescribed by the Crown Lands Acts in force for the time being, the effect of such publication shall be to withdraw the said land (to the extent taken) from any lease or license, or promise thereof, and to cancel, to the like extent, any dedication or reservation of the said land made under the authority of any such Act, or to divest the estate of such corporation or person, and to vest the said land to the extent aforesaid in the Constructing Authority for the purposes mentioned and for the estate limited in the last preceding section.

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.

46. (1) Whenever land is resumed under this Division of this Act, a copy of the Gazette notification declaring such land to be so resumed, certified under the hand of the Constructing Authority, shall in every case be lodged with the Registrar-General and be registered by him in the general register of deeds, unless the land so resumed is wholly or in part comprised in a grant or a certificate of title under the Real Property Acts, in which case upon production of such notification so certified as aforesaid, it shall be the duty of the Registrar-General to deal with and give effect to such notification as if the same were a memorandum of transfer duly executed under the said Acts.’

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

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

17 To this point I have described the evidence relating to the acts that are the subject of the separate questions against the background of the legislation in force as those events unfolded. It is now convenient to set out the relevant terms of the statutory provisions that inform the way in which those questions were framed. Section 23B of the Act provides:

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

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

(a) it is valid (including because of Division 2 or 2A of Part 2); and

(b) it took place on or before 23 December 1996; and

(i) a Scheduled interest (see section 249C);

(ii) a freehold estate;

…

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

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

…’

Section 20(1) of the NSW Act provides:

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

(a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

(b) the extinguishment is taken to have happened when the act was done.’

18 The first set of questions seeks to define the ‘area’ of land or water covered by the native title claim. All the parties are agreed that that area should be defined by reference to the Gazette notification. However, NTS submits that the questions should be answered by referring separately to ‘the land’ so appropriated and resumed and ‘the waters covering that land’. There is no point in drawing such a distinction. Those questions should be answered in the straightforward manner proposed by the NSW Minister, which will adequately identify the spatial area delineated by metes and bounds in the Gazette notification.

19 All the parties accept 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. Nonetheless, NTS submitted that such vesting was not a previous exclusive possession act under s 23B(2) of the Act.

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

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

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

23 The following questions raise for determination the effect of s 18 of the River Murray Waters Act and the characterisation of the 27 Crown grants noted by Mr Bell. The Commonwealth says that it is unnecessary to answer these questions if I reach the conclusion, as I have, that the Gazette notification was a previous exclusive possession act. Contrary to the submissions of other parties, I agree with the Commonwealth. There simply is no utility in answering those questions, and any answers may be productive of needless confusion.

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

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

26 The practice of reserving questions for separate decision may pose problems where findings of fact that establish the ambit of any native title rights and interests have not been made. However, as Gaudron, Gummow and Hayne JJ pointed out in Wilson v Anderson (2002) 76 ALJR 1306 at 1314 [36], it is possible to determine issues of extinguishment in advance of such findings where the extinguishing act relied upon is the grant of an estate in fee simple. Counsel for NTS have, with their customary ingenuity and energy, said everything that could possibly be said in opposition to the extinguishment arguments, but they have not prevailed. I shall attach to these reasons my proposed answers to the questions for determination. The proceedings will be stood over to a date to be fixed for the purpose of making orders to give effect to these reasons. The style of the NSW Minister may need to be altered to reflect the changed administrative arrangements that came into effect on 27 August 2003. The future conduct of these proceedings will doubtless be affected by the fact that the answers seem to provide what Kirby J called in Wilson v Anderson at 1330 [135] a ‘knock-out’ point. Accordingly consideration will need to be given to the involvement of the applicants in their disposition.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 17 October 2003

Appearances

NSW Minister for Land and Water Conservation:	S B Lloyd instructed by I V Knight, Crown Solicitor

State of South Australia:	M D Walter, Crown Solicitor

State of Victoria:	G J Moloney, instructed by the Victorian Government Solicitor

Attorney-General of the Commonwealth (intervening) and Commonwealth of Australia:	Melissa Perry, instructed by the Australian Government Solicitor

Western Murray Irrigation Ltd:	G E Hiley QC and J A Waters, instructed by Suzanna Sheed & Associates

Robert Charles Duncan and Limbra Pastoral Company Pty Ltd:	P M Lane, instructed by Bruce & Stewart

Peter James Middleton and Colin John Mansell:	J A Waters, instructed by J G Thompson

New South Wales Native Title Services Ltd:	John Basten QC and S B Phillips, instructed by Chalk & Fitzgerald

Dates of hearing:	1 and 2 May 2002

Date supplementary written submissions finalized:	29 October 2002

Date of judgment:	17 October 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6070 of 1998

BETWEEN:

DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL

ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE

APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS

RESPONDENTS

PROPOSED ANSWERS TO QUESTIONS FOR SEPARATE DECISION

Definition of the area in the claims

1. Question: What area of land or waters is covered by the application for determination of native title that is the subject of these Federal Court proceedings, NG 6070 of 1998, and given the number NC97/18 by the National Native Tribunal (hereinafter referred to as ‘the Lake Victoria Claimant Application’)?

Answer: The area covered by the Lake Victoria Claimant Application is the area which, by notification published in the NSW Government Gazette No. 166 of 1 December 1922, was appropriated and resumed under the Public Works Act 1912 (NSW) for the construction of the Lake Victoria Works.

2. Question: What area of land or waters is covered by the compensation application that is the subject of the Federal Court proceedings NG 6167 of 1998 and given the number NPA97/4 by the National Native Title Tribunal (hereinafter referred to as ‘the Lake Victoria Compensation Application’)?

Answer: The area covered by the Lake Victoria Compensation Application is the area which, by notification published in the NSW Government Gazette No. 166 of 1 December 1922, was appropriated and resumed under the Public Works Act 1912 (NSW) for the construction of the Lake Victoria Works.

3. Question: Is the area covered by the Lake Victoria Claimant Application the same as the area covered by the Lake Victoria Compensation Application?

Answer: Yes.

Extinguishment of native title in the entire claim area

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

Answer: Yes.

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

Answer: Yes.

Other extinguishment

6. Question: Was there a statutory vesting of an estate in fee simple in the State of South Australia by operation of s 18 of the River Murray Waters Act 1915 (NSW) in respect of a portion of the area covered by the Lake Victoria Claimant Application?

Answer: It is inappropriate to answer this question.

7. Question: If the answer to question 6 is yes – is the act described in question 6 a ‘previous exclusive possession act’ within the meaning of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?

Answer: This question does not arise.

8. Question: In respect of each of the following acts, was the act the grant by the Crown of an estate in fee simple and, if so, does the area granted overlap with the area covered by the Lake Victoria Claimant Application in whole or in part:

8.1 the grant to James Reid on 12 April 1872 recorded in Volume 139 Folio 10 of the Register in the Office of the Registrar General (hereinafter referred to as ‘the Register’).

8.2 the grant to William Crozier on 19 August 1879 recorded in Volume 468 Folio 13 of the Register;

8.3 the grant to William Crozier on 19 August 1879 recorded in Volume 468 Folio 14 of the Register;

8.4 the grant to William Crozier on 19 August 1879 recorded in Volume 468 Folio 16 of the Register;

8.5 the grant to William Crozier on 19 August 1879 recorded in Volume 468 Folio 21 of the Register;

8.6 the grant to William Crozier on 19 August 1879 recorded in Volume 468 Folio 22 of the Register;

8.7 the grant to Duncan Macpherson on 13 October 1880 recorded in Volume 511 Folio 124 of the Register;

8.8 the grant to Duncan Macpherson on 13 October 1880 recorded in Volume 511 Folio 125 of the Register;

8.9 the grant to Duncan Macpherson on 13 October 1880 recorded in Volume 511 Folio 128 of the Register;

8.10 the grant to Duncan Macpherson on 13 October 1880 recorded in Volume 511 Folio 129 of the Register;

8.11 the grant to William Crozier on 20 October 1880 recorded in Volume 511 Folio 241 of the Registrar;

8.12 the grant to William Crozier on 20 October 1880 recorded in Volume 511 Folio 242 of the Register;

8.13 the grant to Duncan Macpherson on 20 October 1880 recorded in Volume 515 Folio 177 of the Register;

8.14 the grant to William Crozier on 6 June 1881 recorded in Volume 547 Folio 135 of the Register;

8.15 the grant to William Crozier on 6 June 1881 recorded in Volume 547 Folio 136 of the Register;

8.16 the grant to William Crozier on 6 June 1881 recorded in Volume 547 Folio 137 of the Register;

8.17 the grant to William Crozier on 5 June 1882 recorded in Volume 625 Folio 166 of the Register;

8.18 the grant to William Crozier on 27 November 1882 recorded in Volume 637 Folio 74 of the Register;

8.19 the grant to Robert Tully and others on 21 May 1883 recorded in Volume 663 Folio 72 of the Register;

8.20 the grant to Duncan Macpherson on 18 March 1884 recorded in Volume 699 Folio 240 of the Register;

8.21 the grant to Duncan Macpherson on 20 January 1885 recorded in Volume 743 Folio 140 of the Register;

8.22 the grant to Duncan Macpherson on 29 March 1887 recorded in Volume 835 Folio 80 of the Register;

8.23 the grant to Arthur Scadding on 11 July 1904 recorded in Volume 1549 Folio 80 of the Register;

8.24 the grant to The Australian Mortgage Land and Finance Company Ltd on 25 July 1906 recorded in Volume 1712 Folio 78 of Register;

8.25 the grant to Betsy Armstrong and another on 25 October 1907 recorded in Volume 1830 Folio 195 of the Registrar;

8.26 the grant to The Australian Mercantile Land and Finance Company Ltd on 26 September 1911 recorded in Volume 2187 Folio 160 of the Register; and

8.27 the grant to Norman Charles Scadding on 23 March 1920 recorded in Volume 3035 Folio 139 of the Register.

Answer: It is inappropriate to answer this question.

9. Question: In respect of each of the listed grants in question 8 – if the answer to question 8 is in terms that:

(a) a grant of fee simple was made; and

(b) at least in part, the area granted overlapped with the area covered by the Lake Victoria Claimant Application –

is the grant a ‘previous exclusive possession act’ within the meaning of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?

Answer: This question does not arise.

Effect of grants

10. Question: In respect of each of the acts referred to in questions 4, 6, and 8 – if the act is a ‘previous exclusive possession act’, did the act extinguish all native title rights and interests in respect of the area of land or waters to which it applied otherwise than under the Native Title Act 1993 (Cth)?

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

11. Question: In respect of each of the acts referred to in questions 4, 6, and 8 – if the act is not a ‘previous exclusive possession act’, did the act nonetheless extinguish all native title rights and interests in respect of the area of land or waters to which it applied?

Answer: This question does not arise.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6167 of 1998

BETWEEN:

DOROTHY LAWSON AND PHILLIP LAWSON

ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE

APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS

RESPONDENTS

PROPOSED ANSWERS TO QUESTIONS FOR SEPARATE DECISION

Definition of the area in the claims

3. Question: Is the area covered by the Lake Victoria Claimant Application the same as the area covered by the Lake Victoria Compensation Application?

Answer: Yes.

Extinguishment of native title in the entire claim area

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