FEDERAL COURT OF AUSTRALIA Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 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 16 FEBRUARY 2004 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: 16 FEBRUARY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be given to Mark Dengate to appear for the applicants on the hearing of the motion by the State Minister (Minister Assisting the Minister for Natural Resources (Lands)). 2. (i) The name of the State Minister who is a respondent to these proceedings pursuant to s 84(4) of the Native Title Act 1993 (Cth) and who was previously known as the Minister for Land and Water Conversation be changed to the Minister Assisting the Minister for Natural Resources (Lands). (ii) The questions specified as separate questions in order 4 made by Whitlam J on 18 July 2001 and varied in orders made 7 January 2002 be answered in the way set out in Schedule 1 to this order. 3. The Native Title determination application is otherwise dismissed. 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: 16 FEBRUARY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be given to Mark Dengate to appear for the applicants on the hearing of the motion by the State Minister (Minister Assisting the Minister for Natural Resources (Lands)). 2. The name of the State Minister who is a respondent to these proceedings pursuant to s 84(4) of the Native Title Act 1993 (Cth) and who was previously known as the Minister for Land and Water Conversation be changed to the Minister Assisting the Minister for Natural Resources (Lands). 3. (i) The questions specified as separate questions in order 2 made by Whitlam J on 18 July 2001 and varied in orders made 7 January 2002 be answered in the way set out in Schedule 1 to this order; (ii) Native title does not exist in the determination area as set out in Schedule 2; (iii) No compensation is payable to the applicants in relation to the determination 4. The compensation application is otherwise dismissed. 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 SCHEDULE 1 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 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? 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 Compensation 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 Compensation 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 Compensation 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 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: 16 FEBRUARY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Today's orders are made in consequence of the reasons for judgment published on 17 October 2003. As those reasons noted, at the hearing of the questions determined in those proceedings the applicants were absent. When those reasons were published the matter was stood over for the purpose of making orders to give effect to those reasons. Subsequently, on 26 November 2003, a notice of motion was filed by the Minister assisting the Minister for Natural Resources (Lands) as the State Minister under the Native Title Act 1993 (Cth) ('the Minister') for each of the two matters which answered the preliminary questions in the terms that I proposed, and which disposed of the applications in consequence of those orders as O 29 r 4 of the Federal Court Rules contemplates. Affidavits in support of each notice of motion, made by solicitors from the New South Wales Crown Solicitor's office, indicated that steps had been taken to draw the proposed notices of motion and the proposed orders to the attention of the parties. 2 The hearing was fixed for today to suit all parties. A video-link connection was made the Magistrates' Court at Mildura to allow the applicants to appear in person. Upon the matter being called on for hearing, Mrs Dorothy Lawson appeared in person and mentioned the matter on behalf of the other applicants. Mrs Lawson also announced that she and all the other applicants wanted Mark Dengate to be given leave to represent them. No objection was taken by any party to Mr Dengate being granted leave to appear today on the hearing of the motions. In the peculiar circumstances and for that limited purpose, Mr Dengate was given leave to appear for the applicants. Mr Dengate very courteously and politely dealt with some points he wished to make about my earlier reasons for judgment, and he has addressed the topic of the orders that ought to be made. 3 I am satisfied that the orders proposed by the Minister give effect to the reasons for judgment and effectively dispose of these proceedings. The applicants, of course, will have their right of appeal in respect of what are now final orders in the proceedings. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 3 March 2004 Appearances Applicants Mr Dengate, with leave NSW Minister Assisting the Minister for Natural Resources (Lands) S B Lloyd instructed by I V Knight, Crown Solicitor Western Murray Irrigation Ltd J A Waters, instructed by Suzanna Sheed & Associates National Farmers Association Mr M K Hughes of Bruce and Stewart New South Wales Native Title Services Ltd Ms B J Guthrie of Chalk & Fitzgerald Date of hearing: 16 February 2004 Date of judgment: 16 February 2004