Queensland v Congoo

Case [2015] HCA 17

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, KIEFEL, BELL, GAGELER AND KEANE JJ

STATE OF QUEENSLAND  APPELLANT

AND

TOM CONGOO & ORS  RESPONDENTS

Queensland v Congoo

[2015] HCA 17

13 May 2015

B39/2014

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

S E Brown QC with G J D del Villar for the appellant (instructed by Crown Law Brisbane)

S A Glacken QC with P D Herzfeld for the first respondents (instructed by North Queensland Land Council)

J T Gleeson SC, Solicitor-General of the Commonwealth and S B Lloyd SC with C J Klease for the second respondent (instructed by Australian Government Solicitor)

No appearance for the third respondent

Submitting appearance for the fourth to twenty-first respondents

No appearance for the twenty-second and twenty-third respondents

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Queensland v Congoo

Native title – Native title rights in relation to land – National Security Act 1939 (Cth), s 5(1)(b)(i) provided for making of regulations for securing public safety and defence of Commonwealth and for authorising taking of possession or control, on behalf of Commonwealth, of any property – National Security (General) Regulations 1939 (Cth), reg 54(1) provided that if it appeared to Minister of State for Army to be necessary or expedient to do so in interests of public safety, defence of Commonwealth or efficient prosecution of war, or for maintaining supplies and services essential to life of Commonwealth, Minister could, on behalf of Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession – Where orders were made under reg 54(1) in relation to land authorising officer to do anything in relation to land that holder of estate in fee simple in land could do and prohibiting all other persons from exercising any right of way over land or any other right relating thereto – Whether orders inconsistent with claimed native title rights and interests – Whether clear and plain legislative intention to extinguish native title rights and interests.

Words and phrases – "clear and plain legislative intention", "exclusive possession", "extinguishment", "inconsistency of rights", "possession".

National Security Act 1939 (Cth), s 5(1).
National Security (General) Regulations 1939 (Cth), reg 54.

FRENCH CJ AND KEANE J.

Introduction

  1. In September 2001, the Bar-Barrum People lodged an application in the Federal Court for a determination of native title over an area of land in the Atherton Tableland in the State of Queensland, part of which had been used by the Commonwealth during World War II as an artillery range and a live fire manoeuvre range for the training of infantry and armoured units. The Commonwealth took possession of the land and used it pursuant to a series of orders, made between 1943 and 1945, under reg 54 of the National Security (General) Regulations ("the National Security Regulations"). That regulation was made pursuant to s 5 of…

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Queensland v Congoo [2015] HCA 17
Case
[2015] HCA 17
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the State of Queensland against a decision of the Full Court of the Federal Court of Australia concerning native title rights. The dispute arose from orders made under the National Security (General) Regulations 1939 (Cth) during World War II, which authorised the Commonwealth to take possession of certain land. The Bar-Barrum people claimed native title rights over this land, and the central question was whether the orders made under the National Security Act 1939 (Cth) and its Regulations extinguished these native title rights.

The legal issues before the High Court were whether the orders made under regulation 54(1) of the National Security (General) Regulations 1939 were inconsistent with the claimed native title rights and interests of the Bar-Barrum people, and whether there was a clear and plain legislative intention to extinguish those native title rights and interests. The parties agreed that the orders authorised an officer to do anything a fee simple holder could do and prohibited all other persons from exercising any rights over the land, and that the Commonwealth physically occupied the land for military purposes.

The High Court reasoned that the reg 54 orders asserted the Commonwealth's rights over the land for a limited duration, taking exclusive possession to the exclusion of all others. This possession was justified by the need for public safety, defence, and the efficient prosecution of the war. However, the Court found that the military orders, while authorising the preclusion of native title rights for their duration, did not demonstrate a clear and plain legislative intention to extinguish those rights permanently. The powers conferred by the orders were not unconfined and did not support a finding of inconsistency that would lead to extinguishment.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

No party to the appeal alleged that the reg 54 orders were made beyond power or are otherwise infirm. All said, rightly, that the reg 54 orders must be read and understood against the background of the National Security Act 1939 and the Regulations. But it is not necessary to trace that background in any detail. It is enough to observe that the parties accepted that each of the reg 54 orders would have ceased to take effect no later than the time fixed by s 19 of the National Security Act 1939 as the period of operation of that Act: the duration of the war and six months thereafter. Some agreed facts The proceedings in the Full Court of the Federal Court were by way of special case. For the purposes of that special case, the Bar‑Barrum people and the State agreed that, subject to the effect of the reg 54 orders, the Bar‑Barrum people hold "at least non‑exclusive native title rights and interests" over the land (in effect) to go onto the land, to camp there, 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. Those parties further agreed that, at about the time of the first order, "the Commonwealth physically occupied at least some of the [land] in that the Commonwealth used at least some of the [land] as an artillery range and a live fire manoeuvre range for the training of infantry and armoured units preparing to deploy to the South West Pacific area". The parties agreed that the Commonwealth ceased physically to occupy any part of the land on or about 31 August 1945.Taking possession The Bar‑Barrum people and the Commonwealth submitted that there had to be some "manifestation of the intention to take possession" of the land beyond the making of the reg 54 orders. The Commonwealth's intention to take possession of this land to the exclusion of all others was evidently made plain by bombarding the land with live artillery fire and using it for live fire military manoeuvres. But the proposition that there must be some manifestation of an intention to take possession beyond the making of the relevant reg 54 order is not right. The reg 54 orders took effect according to their terms. The orders were the assertion by the Commonwealth of rights over the land, not the grant of any right or bundle of rights to a third person. The assertion of those rights was for a limited time of uncertain duration. It was an assertion which could be made only upon the decision‑maker being satisfied of the matters stated in the Regulations. But, being satisfied of those matters, the officer who made an order, by making it, took possession on behalf of the Commonwealth of the land specified in it. The possession which the Commonwealth thus took was possession to the exclusion of all others. Each order authorised an identified officer (and persons whom that officer authorised) to occupy the land. Not only was this officer (and other authorised persons) authorised "to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest", others having "any right of way over the land or any other right relating thereto" were not permitted to exercise that right. No doubt anyone could have asked for permission to go onto the land. But if, as all parties have assumed in this litigation, the reg 54 orders were valid, that permission could be refused for any reason or no reason. Permission could be refused because the Commonwealth had taken possession of the land. And taking possession had been judged to be necessary and expedient in the interests of the public safety, the defence of the Commonwealth and the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community. The connection between using the land as an artillery range and live fire manoeuvre range and the defence of the Commonwealth is evident. By the reg 54 orders the Commonwealth took exclusive possession of the land. Extinguishment of native title

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ (dissent) HAYNE J (dissent)
In this case the position is clear. The military orders authorised, although they did not mandate, the preclusion, for their duration, of the exercise of the native title rights and interests of the Bar-Barrum People. The powers which they conferred were not unconfined. They could not support a finding of inconsistency between the statutory scheme and the native title rights and interests of the Bar-Barrum People which would lead to the conclusion that their rights or interests were extinguished.Conclusion For the preceding reasons, the first ground of appeal fails. Having regard to the basis upon which it fails, the second ground of appeal does not arise. The appeal should be dismissed with costs. The issue During World War II, pursuant to regulations made under the National Security Act 1939 (Cth), a delegate of the Minister of State for the Army made orders ("the reg 54 orders") directing a particular officer to occupy certain land, authorising that officer to do anything in relation to the land that the holder of a fee simple could do by virtue of that interest and prohibiting all other persons from exercising "any right of way over the land or any other right relating thereto". Did the reg 54 orders extinguish native title rights and interests in respect of that land? A majority of the Full Court of the Federal Court of Australia (North and Jagot JJ, Logan J dissenting) held[56] that the reg 54 orders did not extinguish native title rights and interests. By special leave, the State of Queensland appeals against so much of the orders made by the Full Court as answered a question raising that issue in a special case reserved for the consideration of the Full Court. The appeal should be allowed. Other questions reserved by the special case, including a question about the application of s 51(xxxi) of the Constitution to the extinguishment of native title, were not the subject of the appeal and are not considered in these reasons.[56]Congoo v Queensland (2014) 218 FCR 358.The determinative point The majority in the Full Court held[57], and in this Court the first and second respondents (the Bar‑Barrum people and the Commonwealth) submitted, that the objective intention, or statutory purpose, of the reg 54 orders (and the provisions pursuant to which they were made) was that "all rights and interests in the land should yield to the Commonwealth's exclusive possession" for the duration of the war (and up to six months beyond) "but should otherwise continue and found rights of compensation for the interference to those rights thereby resulting".[57](2014) 218 FCR 358 at 376 [52] per North and Jagot JJ. Part of that proposition is plainly right. All rights and interests in the land were to yield to the Commonwealth's taking of exclusive possession. And the Commonwealth was to take exclusive possession of the land only for the duration of the war (and up to six months beyond). But the remainder of the proposition, however expressed, does not follow. It is both legally and logically wrong to say that the "objective intention" or "statutory purpose" of the reg 54 orders or the laws pursuant to which they were made was to "preserve" all previously existing rights.

Ratio Decidendi

Legal Principle Established

Established by:

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