Congoo v Queensland

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.