Lawson v Minister for Environment and Water [2022] NSWLEC 122

Land and Environment Court New South Wales

Medium Neutral Citation: Lawson v Minister for Environment and Water [2022] NSWLEC 122 Hearing dates: 30 September 2022 Date of orders: 6 October 2022 Decision date: 06 October 2022 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [42] Catchwords: JOINDER - claim for compensation for resumption in 1922 of land at Lake Victoria in far south‑western New South Wales - claimant an Aboriginal person - claim advanced on two bases - first claim based on extinguishment of native title rights - second claim based on adverse possession - claim made against South Australian and New South Wales governments - claim opposed by both governments - both bases of claim opposed - claim founded on rights said to be held by claimant's grandmother at time of resumption - 2015 native title determination recognises native title rights as existing on land surrounding resumed land - native title rights those of the Barkandji and Malyangapa Peoples - determination lists apical ancestors from whom the native title rights are derived - native title rights held by Barkandji Native Title Group Aboriginal Corporation (Corporation) as trustee for descendants of listed apical ancestors - apical ancestors include three members of the Maraura, a subgrouping of the Barkandji and Malyangapa Peoples - three Maraura apical ancestors nominated by claimant in pleadings - claimant is descendant of one of the three Maraura apical ancestors - question of whether Corporation should be joined as a party to the proceedings - joinder sought by Corporation - joinder opposed by claimant - tests for joinder considered - rights of descendants of all three Maraura apical ancestors affected by claimant's native title claim - Corporation may have responsibilities with respect to those rights - potential for Corporation to have responsibility more than a mere possibility - joinder of Corporation appropriate - Corporation joined as Third Respondent COSTS - costs of joinder deferred to outcome of primary proceedings SUBPOENA - subpoena issued to the Corporation by the claimant - Corporation applies to have subpoena set aside in part - Corporation's subpoena challenge deferred pending outcome of joinder proceedings FUTURE CONDUCT OF PROCEEDINGS - future conduct of proceedings adjourned to permit Corporation to consider what role it proposed to take in the primary proceedings and whether it maintained its opposition to the claimant's subpoena - short adjournment permits retention of hearing dates set for February 2023 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 and 57 Native Title Act 1993 (Cwth) Native Title (Prescribed Bodies Corporate) Regulation 1999 (Cwth) Uniform Civil Procedure Rules 2005 (NSW), r 6.24 Cases Cited: John Alexander 's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Lawson v South Australian Minister for Water and the River Murray [2014] NSWLEC 158 Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189 Lawson v South Australian Minister for Water and the River Murray [2017] NSWLEC 62 Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 Lawson v Minister for Environment and Water (2020) 19 BPR 40,215; [2020] NSWSC 186 Lawson v Minister for Environment & Water (SA) (2021) 388 ALR 335; [2021] NSWCA 6 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 Category: Procedural rulings Parties: Ms Dorothy Lawson (Applicant) Minister for Environment and Water (First Respondent) State of New South Wales (Second Respondent) Barkandji Native Title Group Aboriginal Corporation (Subpoenaed Party) Representation: Counsel: Mr D Yarrow, barrister (Applicant) Mr W Ambrose, barrister (First Respondent) Mr J Waters SC (Second Respondent) Ms C Taggart, barrister (Subpoenaed Party)