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The vulnerability of Native Title?
The vulnerability of Native Title?
Posted 19/06/2015 by Kirsty Magarey
Queensland v Congoo  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.