Lawson v Minister [2020] NSWSC 186
It was argued that the presumption against taking property without compensation8 prevented extinguishment of native title by legislation9. An intention to take must be ‘manifest’, something which requires ‘clear and unambiguous words’10. The provision said that the lands ‘are hereby vested in South Australia for an estate of fee simple …’
Ward CJ rejected the argument (at [137]) saying that the presumption ‘was simply that – a presumption’. Although the word ‘vest’ may be of ‘elastic import’11, an immediate taking without compensation was supported by text, context and purpose. Later land dealings could have no impact on interpretation.
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Footnotes:
8 Clissold (1904) 1 CLR 363 (at 373), Fazzolari [2009] HCA 12 (at [42]).
9 s 18 of the River Murray Waters Act 1915 (NSW).
10 ICM [2009] HCA 51 (at [75]), Mabo (No 2) (1992) 175 CLR 1 (at 111).
11 Crystal (1940) 64 CLR 153 (at 168), cf Minerology [2017] FCAFC 55.