Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9
Citation:
Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9
Parties:
TOM CONGOO & ORS ON BEHALF OF THE BAR-BARRUM PEOPLE #4 v STATE OF QUEENSLAND & ORS, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA and ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
File number:
QUD 6030 of 2001
Judges:
NORTH, LOGAN AND JAGOT JJ
Date of judgment:
21 February 2014
Corrigendum:
14 May 2014
Catchwords:
NATIVE TITLE – statutory interpretation – defence and war – special case stated – extinguishment of native title – legislative intention – inconsistency test – construction of National Security Act 1939 (Cth) s 51(1) and National Security (General) Regulations regs 54 – whether military orders made under the National Security Regulations purported to effect an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution – acquisition of property and requirement of physical occupation – whether National Security Regulations “past acts” under Native Title Act 1993 (Cth) – whether in making the military orders all native title rights wholly extinguished
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Congoo v Queensland [2014] FCAFC 9
Case
[2014] FCAFC 9
Decision Date
CaseChat Overview and Summary
Congoo v Queensland was a case before the High Court of Australia, where the central issue revolved around the extinguishment of native title rights under federal legislation and regulations in the context of military activities. The applicant, Congoo, sought to determine whether certain military orders made under the National Security (General) Regulations 1939 (Cth) had the effect of extinguishing native title rights contrary to the Constitution and the Native Title Act 1993 (Cth). Specifically, the case examined whether these orders constituted an acquisition of property on terms that were not just, and if the regulations constituted "past acts" under the Native Title Act.
The legal issues before the court were whether the military orders made under the National Security Regulations constituted an acquisition of property otherwise than on just terms, in contravention of section 51(xxxi) of the Constitution, and if these orders had the effect of extinguishing all native title rights. The court was also tasked with interpreting the legislative intention behind the National Security Act 1939 (Cth) and the National Security (General) Regulations to ascertain if they amounted to "past acts" under the Native Title Act.
The court found that the military orders did not constitute an acquisition of property on just terms as required by the Constitution. It held that the acquisition of property under the Constitution necessitates physical occupation, which was not present in the case of the military orders. Furthermore, the court concluded that the National Security Regulations were not "past acts" under the Native Title Act, and therefore, did not extinguish native title rights. The court also ruled that the orders did not wholly extinguish native title rights.
The court answered the questions posed in the special case stated, finding that the military orders did not extinguish native title rights, and that it was not necessary to answer certain questions as the findings rendered them moot. The court ordered that each party bear their own costs for the special case, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The questions asked in the special case stated be answered as follows:
(a) Question 1: No.
(b) Question 2: Not necessary to answer.
(c) Questions 3(a) and (b): No, and no respectively.
2. Each party bear its own costs of the special case.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.