Skip to content

  • Home
  • About us
  • Expertise
  • Client results
  • News & Insights
  • People
  • esg@mcr – part of our DNA
  • Sustainability
  • Community Partnerships Program
  • Inclusion and Diversity
  • Join us
  • Contact Us
  • Subscribe
Home / NEWS & INSIGHTS / Insight / Native Title compensation – Lawson v Minister for Environment & Water (SA) (“Lake Victoria case”)
Insight 13 April 2021

Native Title compensation – Lawson v Minister for Environment & Water (SA) (“Lake Victoria case”)

Things you need to know

A decision by the New South Wales Court of Appeal has given rise to the potential for compensation to be owed for acts affecting native title rights and interests under legislation other than the Native Title Act 1993 (Cth) (Cth NTA) and outside the timeframes for which the Cth NTA affords compensation.

What you need to do

Be aware that in NSW an avenue exists outside the Cth NTA for compensation to be owed by virtue of a person holding native title rights and interests.

The Cth NTA provides native title holders with an entitlement to compensation for acts affecting native title rights and interests which occurred after 31 October 1975.  The Court of Appeal’s decision in Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6 (Lake Victoria Case) gives rise to the potential for compensation to be owed under other legislation in New South Wales by virtue of a person holding native title rights and interests.

Background

The Cth NTA provides native title holders with an entitlement to compensation from State and Territory Governments for acts affecting native title rights and interests which occurred after commencement of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) on 31 October 1975.  The Native Title (New South Wales) Act 1994 (NSW) gives effect to the Cth NTA and passes that compensation liability on to other land users in certain circumstances.

Importantly, local governments in NSW are responsible for complying with the Cth NTA in all their dealings and activities by virtue of the Crown Land Management Act 2016 (NSW) (CLM Act).

In particular, the CLM Act provides that a local government which engages in conduct that would give rise to a right to compensation under the Cth NTA will be the person who is liable (rather than the State) for the compensation, and will indemnify the State for any compensation liability owed by the State.

Lake Victoria Case

The Court of Appeal made its decision in the Lake Victoria Case on 11 February 2021.

The appellant, Ms Dorothy Lawson, was seeking compensation under the Public Works Act 1912 (NSW) (NSW Public Works Act) for the extinguishment of a possessory title and native title rights and interests in land in New South Wales known as the Lake Victoria area.

Pursuant to an agreement between the Commonwealth and relevant State Governments, the NSW Government had vested the Lake Victoria area in the South Australian Government as an estate in fee simple pursuant to the River Murray Waters Act 1915 (NSW).  In 1922, the land was resumed under the NSW Public Works Act.

The NSW Public Works Act provided, to the effect, that upon notification of a resumption ‘the estate and interest of every person entitled to lands resumed’ under the Act ‘be taken to have been converted into a claim for compensation’.

The Court found that, by operation of the NSW Public Works Act, the resumption had extinguished any pre-existing possessory or native title rights held by Ms Lawson and had converted into a claim for compensation.

As a result, Ms Lawson is now entitled to make a compensation claim pursuant to the NSW Public Works Act.

Key implications

Intriguingly, Ms Lawson would have no recourse to compenstion for the effect of the resumption on native title rights and interests under the Cth NTA.  This is because the Cth NTA recognises that acts affecting native title which occurred prior to introduction of the Racial Discrimination Act on 31 October 1975 are valid, and accordingly, affords compensation to native title holders for acts which occurred after that date.

The Court of Appeal has recognised that by the operation of the NSW Public Works Act another avenue for compensation exists by virtue of a person holding native title rights and interests (regardless that the act concerned preceded introduction of the Racial Discrimination Act).

It remains to be seen whether the SA Minister for Environment and Water will seek leave to appeal against the Court of Appeal’s decision in the High Court.

Otherwise, the outcome of any compensation claim pursued by Ms Lawson is now to be determined by the Supreme Court’s Equity Division.

Thank you to Holly Stjernqvist for her contribution to this article.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

About the authors

  • Liam Davis

    Partner
  • Dominic McGann

    Partner

In other news

‘Done and seen to be done’ – livestreaming of court proceedings

5 December 2023Insight

Wind and Solar Farms from the perspective of the landowner’s mortgagee

28 November 2023Insight

Major changes to unfair contract terms laws – the regime is here

24 November 2023Insight

Financial assistance and whitewash in financing transactions

7 November 2023Insight

VIEW ALL NEWS & INSIGHTS

BRISBANE

Level 11, 66 Eagle Street
Brisbane QLD 4000
GPO Box 1855
Brisbane QLD 4001
Tel +61 7 3233 8888
Fax +61 7 3229 9949

 

GET IN TOUCH

    Contact form


    We handle your personal information in accordance with our privacy policy.

    Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

    sydney

    Level 32, 25 Martin Place
    Sydney NSW 2000
    GPO Box 462
    Sydney NSW 2001

    Tel +61 2 8241 5600
    Fax +61 2 8241 5699

     

    GET IN TOUCH

      Contact form



      We handle your personal information in accordance with our privacy policy.

      Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

      Canberra

      Level 9, 2 Phillip Law Street
      Canberra ACT 2601

      Tel +61 2 8241 5600
      Fax +61 2 8241 5699

       

      GET IN TOUCH

        Contact form



        We handle your personal information in accordance with our privacy policy.

        Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

        follow us

        CLIENT LOGIN

        © McCullough Robertson. ABN 42 721 345 951 Site map Disclaimer Privacy Policy Statement of Business Ethics Credit Reporting Policy

        X