Opinion Number. 278

Subject

ACQUISITION OF LAND WHETHER INCLUDES RESERVATION OF MINERALS BY STATE

Key Legislation

CONSTITUTION, s. 51 (xxxi) : LANDS ACQUISITION ACT 1906

Date
Client
The Minister for Home Affairs

The Minister for Home Affairs has asked for advice as to the effect of State laws' reservations as against the Commonwealth in respect of land acquired under the Lands Acquisition Act 1906 and generally.

The reservations are not the same in the case of all grants but it appears to be the general policy of the States to reserve the right to metallic minerals with incidental rights as to mining.

If the Commonwealth acquires land from an individual only, whether by compulsory process or by agreement, it does not, in my opinion, acquire anything more than the interest which the individual had and consequently it does not acquire the rights reserved by the State. The reservations in this case have the same effect as against the Commonwealth as they had against the individual from whom the Commonwealth acquired the land.

If the Commonwealth acquires by compulsory process, not the interest of an individual owner merely, but the land without any limitation expressed in the notification, it acquires the legal estate in the land, including all the interests reserved to the State.

If the Commonwealth acquires land from a State by agreement, the extent of the interest acquired depends upon the terms of the agreement.

[Vol. 6, p. 37]

*See also Opinion No. 321.