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The vulnerability of Native Title?

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The vulnerability of Native Title?

Posted 19/06/2015 by Kirsty Magarey

Queensland v Congoo [2015] HCA 17, a recent High Court case, has implications for Native

Title holders throughout the country. It may also have implications for the High Court’s

management of cases with an even number of judges.

Recent changes in personnel within the High Court have led to a number of decisions being

made with a bench of six, rather than the full seven, judges. This has in turn led to some

decisions being made with a 3:3 split. In such cases, under section 23 of the Judiciary Act

1903, the decision being appealed from is left intact. The resulting judgments may be

referred to as having a ‘statutory majority’, which offers less precedential value than a

traditional, numerical majority.

While the existence of a statutory majority in the Congoo case makes the lessons we can

learn from it more precarious, the judgments still offer illumination. Thus Congoo provides

an understanding of Native Title as a more robust form of title that can survive particular

forms of temporary occupation.

The facts of the Congoo case were largely uncontested and it was only the legal implications

that were in dispute. The existence of the Bar Barrum People’s native title in the relevant

area of the Atherton Tablelands in Queensland was accepted by all as having existed,

however the Queensland Government sought to establish that the relevant native title had

been extinguished by the area’s occupation by military authorities during the Second World

War. It was generally agreed that the native title in question had consisted of rights to ‘to go

onto the land, to camp there [including building temporary shelters], to hunt, fish and

gather for personal, domestic and non-commercial communal purposes, to conduct

ceremonies, to be buried there, to maintain places of importance and areas of significance,

to teach the physical and spiritual attributes of the area, to hold meetings there and to light

fires for domestic purposes.’ (per Haynes J at 53).

The military occupation (and the establishment of an artillery and live fire range) had

precluded anyone other than the military from using the area at the time. It was effected by

Military Orders made under Regulations which were, in turn, made under the National

Security Act 1939. ‘The NSA [it was pointed out by the statutory majority] was a draconian

measure with a sunset clause.’ The statutory grant of power was, as all accepted, only

operational if it was crucial in the national interest.

A central tenet of the statutory majority was the importance of native title and that its

extinguishment should be avoided where possible. They focussed particularly on the

legislature’s intentions, saying that ‘a clear and plain intention is necessary to effect

extinguishment’. They explained this focus: ‘[t]he high threshold of attributed legislative

intention flows from the seriousness of the consequences of extinguishment for indigenous

inhabitants’ (at 32).

The statutory majority emphasised the temporary and limited nature of the legislative

regime. They decided that, since the government had never intended the regulations to be

permanent, and had made several arrangements which emphasised the underlying property

rights were not extinguished but had simply been suspended for the duration of the war,

the native title rights had also not been extinguished. The Prime Minister commented at the

time ‘there must be as little interference with individual rights as is consistent with

concerted national effort’. (quoted by French CJ and Keane J at 3).

The minority judges regarded the legislative intentions as significantly less relevant, arguing

that the tests for extinguishment were objective. Consequently the subjective intentions of

those allegedly extinguishing native title were ‘irrelevant’. (Kiefel J at 109).

The statutory majority took a sophisticated approach to the notion of possession - pointing

out that there is still no single ‘satisfactory’ definition of possession available - illustrating

this thesis by pointing to at least two concepts of possession: one of which is the right to

permanently exclude anybody for whatever reason and another of which is simply the

physical/actual possession of an area. They emphasised the fluid nature of the term and

concept of ‘possession’ so that the military ‘possession’ did not necessitate the

extinguishment of other interests. Finally they pointed to the various differences between

the access provided by the legislation and an estate in fee simple (the fullest ‘possession’

known to the law).

The minority decided that the authorities necessitated the extinguishment, emphasising that

comparable ‘possessions’ of a lesser sort, such as temporary leases, had previously served

to extinguish native title. They took a narrower view of the ranges of ‘possessions’ — in

particular the types of possession which could allow for the continued existence of Native


In a helpful article commenting on the case, the law firm McCullough Robertson concluded

that after Congoo ‘[c]lients that propose any developments or projects in these jurisdictions

can no longer argue that such military orders extinguished native title.’ However the nature

of the split in this case caused Jeremy Gans, a Melbourne academic, to question the security

of this outcome. He comments that the issue ‘has not been finally resolved’ and that, while

the decision binds the participants in the case, it could be re-opened in subsequent

proceedings. In a series of articles, Professor Gans has argued that the High Court should,

therefore, address the problem of retiring judges leading to evenly balanced decisions and

less conclusive outcomes.