Compulsorily acquiring native title rights

Update on the Lawson Proceedings Lawson v Minister for Environment and Water [2022] NSWLEC 122

Acquiring authorities, including Councils, can acquire native title rights and interests the same way they can any other interests in land. However, the Lawson Proceedings have shed light on additional considerations with native title claims.

The proceedings take their name from Ms Dorothy Lawson, Murra Wurra Paakantji elder (dubbed ‘the next Eddie Mabo’ by media). While they date back to 2014, Ms Lawson’s legal battle really started in 2003.

The land is in the Lake Victoria area, part of the Murray-Darling basin. In 1914, the Commonwealth and the States of New South Wales, Victoria and South Australia entered into an agreement for water storage for the benefit of South Australia.

In 1915, the agreement was ratified by the River Murray Waters Act (RMW Act). In 1922, the area was acquired by NSW under the Public Works Act so it could be provided to South Australia as an estate in fee simple, per the Agreement.

In first instance, Ms Lawson contends that at the time of resumption, her grandmother, Mary Alice Mitchell, had a portion of legal estate in the land. In the alternative, Ms Lawson alleges that at the time of resumption, she (Ms Lawson) was a member of the Native Title Group, the Maraura People, who held native title rights and an interest in the land.

Mrs Lawson’s claim for compensation has proved to be anything but straightforward, as we will now show.

The first hurdle

The first hurdle, considered in the NSW Land and Environment Court, was that the statutory time limit for submitting a claim elapsed about 100 years ago. However, the judge used the discretion afforded under the Public Works Act to grant Ms Lawson an extension (now repealed). This allowed Mrs Lawson to progress her claim.

The second hurdle

The next step was considering whether entitlement to claim compensation under the Public Works Act could be transferred to another person.

In 2017, the NSW Land and Environment Court ruled that the entitlement could be transferred – either to the Public Trustee or to the executor or administrator of the estate of the deceased person. This meant that Ms Lawson passed the second hurdle. Proceedings were to carry on.

The third and fourth hurdle

The nature of the 1914 Agreement, and its subsequent ratification, led to a further question of law: Was the land in question vested in South Australia for an estate in fee simple under Section 18 of the River Murray Waters Act 1915 (NSW)?

The NSW Supreme Court held that the land was, indeed, vested in South Australia and therefore dismissed the proceedings.

Ms Lawson appealed this decision. In 2021, the NSW Court of Appeal held that the land was not vested in South Australia for an estate in fee simple. In its ruling, the Court held – contrary to the Supreme Court’s judgement – that Section 18 of the RMW Act (extracted below) could not be read literally:

“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 that said State”

The literal interpretation would not be consistent with statutory purpose, said one of the Appeal Court judges. The RMW Act is meant to be read concurrently with the Public Works Act, he said. On that basis, the pre-existing rights were not extinguished by the RMW Act, but by the resumption which was granted by the Public Works Act.

Another of the Appeal Court judges agreed with the appeal, but for a different reason. The words “hereby vested” should not be interpreted as the time of the operation, he said, but rather the effect of that section.

Of all the hurdles Ms Lawson had to overcome, this was the most significant. It goes to the crux of all compulsory acquisition claims – for there to be a claim for compensation, a pre existing right must have been extinguished. If it was found that the RMW Act granted South Australia an estate in fee simple, then any pre-existing rights were not extinguished by the resumption in 1922.

Most recently

In October 2022, the NSW Land and Environment Court heard a claim from the Barkandji Native Title Group Aboriginal Corporation (the Corporation) that it should be joined as a party to the proceedings.

This was opposed by Ms Lawson. The Corporation is a prescribed body corporate which holds on trust the native title rights of those whose title rights were recognised by the Federal Court in 2015 and 2017.

Referencing Ross v Lane Cove Council [2014] NSWCA 50 and Victoria v Sutton [1998] HCA 56, Moore J said a joinder was appropriate, as the rights of the Corporation “may” be impacted.

At this stage, it is not certain the rights of the Corporation will be affected. This is because a potential native title interest only arises if Ms Lawson is successful in the current proceedings.

What does this all mean for acquiring authorities?

The key takeaways from the Lawson Proceedings for acquiring authorities are:

1. Regard must always be given to the acquiring legislation, and any discretionary powers within, which allows the Court to vary ordinary statutory provisions (i.e. time limits). This may allow compulsory acquisition claims to apply in retrospect.

2. A legal right to claim compensation can be passed on through the deceased’s estate even if the deceased took no action to instigate proceedings.

3. The interpretation and purpose behind acquiring legislation must be considered. The rights which are (or will be) extinguished are considered in conjunction with the legislation which gives acquiring authorities the power to resume land. Although native title is governed by the Native Title Act 1993 (Cth), it may also be owed under NSW legislation.

4. Joinder applications may be granted even though they are dependent on a specific outcome of a claim.

Update on Olde English Tiles v Transport for New South Wales [2022] NSWCA 108

Many readers will be aware of the decision of the five-Judge bench of the Court of Appeal in Olde English Tiles v Transport for New South Wales [2022] NSWCA 108.

This landmark case held that:

1. “Interest in land” must be in privilege over or in connection with land. While the definition can encompass a wide range of interests, there is no obligation for compensation of interests based on personal relationships.

2. Most importantly (and the reason for its ‘landmark’ title) is the Court’s decision that a compensable interest must begin with the foundation of a market value claim. Once this has been proven, claimants may then access the right to claims for compensation for losses attributable to disturbance. This has serious implications for claimants with bare licences, or permission to occupy the land, as they have no foundation or interest and cannot, therefore, claim disturbance. Claimants with leasehold interests must prove they were paying market rent.

3. It is inappropriate to overrule the existing authorities of Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73 and Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151, as these cases instigated substantial legislative amendments to the Just Terms Act in 2016.

Whether the intention of the Just Terms Act is to close the door on disturbance claims for those without a compensable interest is a matter of much debate. Arguably, without any Court authority to the contrary, claims must progress on the current legislative basis – that is, no market value means no compensable interest.

The Applicant has filed a special leave application to the High Court of Australia. Acquiring authorities are awaiting the outcome with bated breath, as it will have significant ramifications for both acquiring authorities and interest holders.

As soon as we have news on that application, we will provide a further update.

Authors: Dennis Loether & Maja Podinic