On 13 May 2015, a split decision in the High Court was handed down in the case ofQueensland v Congoo [2015] HCA 17, ruling that military orders dating back to 1943 did not extinguish the native title rights and interests of the Bar Barrum People #4 (QUD6030/2001) (Bar Barrum People) in areas of land in the Atherton Tableland in Queensland.

Although specifically covering the Bar Barrum People native title claim, this decision creates a precedent for an expansive area of land across Australia, including Queensland and New South Wales.  Over 13,000 such military orders were made across the country during World War II.

Chronology of the Bar Barrum People claim

The Bar Barrum People lodged a claim for a native title determination on 28 September 2001 over an area of land in the Atherton Tableland in the State of Queensland.  However, decades earlier, the Commonwealth had taken control of a portion of the claimed land by way of five successive military orders made under Regulation 54 of the National Security (General) Regulations (Reg 54).  This part of the land was used during WWII as a live firing range for training infantry and armoured units.

As part of the proceedings for the native title application, orders were made for a special case to consider the issue of whether these military orders extinguished the native title rights and interests of the Bar Barrum People.  On 21 February 2014, the Full Federal Court of Australia answered in the negative – that the military orders did not wholly extinguish all native title rights and interests in the claimed area.  The State of Queensland appealed to the High Court, where the appeal was dismissed on a split decision of 3-3 judges.

No extinguishment of native title

The question of whether native title had been extinguished by such military orders turned on whether the regime of control created by the legislative instrument (i.e. the military orders) was inconsistent with the continued existence of native title rights in connection with the land.  This depended on the intention of the legislation that conferred the power of control to the Commonwealth, and in particular, whether there was a ‘clear and plain’ intention to extinguish all other rights and interests in the land.

Upon a construction of Reg 54, three justices of the High Court, including the Chief Justice, dismissed the appeal on the same two grounds that underpinned the decision of the Full Federal Court – that the regime of control granted to the Commonwealth was:

  • limited by its legislative purpose (that is, extraordinary wartime powers) and
  • limited in duration.

In other words, the prohibition was only permitted to happen by order for an inherently temporary period of ‘not longer than six months after His Majesty ceases to be engaged in war’.

Importantly, the military orders were made under legislation, which had expressly acknowledged the continued existence of all pre-existing rights irrespective of the source of those rights.

What does this mean?

At law, a split decision in the High Court means that the court must defer to the earlier decision in the Full Federal Court.

This case confirms that the occurrence of the military orders over 70 years ago did not extinguish the rights and interests of any native title claimants, including across Queensland and New South Wales.  Clients that propose any developments or projects in these jurisdictions can no longer argue that such military orders extinguished native title.