French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ
In this matter, the High Court dismissed the Queensland Government’s appeal to a Full Federal Court decision.
In September 2001, the Bar-Barrum People sought a determination of native title over an area of land in the Atherton Tableland.
During World War II, the Commonwealth had taken possession of some of that area, by authority of Military Orders made under the National Security Act 1939 (Cth) (the NSA. The Commonwealth used the area as an artillery range and a live-fire manoeuvre range and relinquished the land in August 1945.
In August 2013, Logan J referred a Special Case to the Full Court of the Federal Court, asking:
- whether Military Orders made under the NSA was an acquisition of property of the Bar-Barrum People otherwise than on just terms contrary to s 51(xxxi) of the Constitution
- if yes, whether the Regulations underpinning the Military Orders constitute “past acts” under the Native Title Act 1993 (Cth) (the NTA) and, if so, whether those past acts were validated under the NTA and
- whether making the Military Orders extinguished native title rights and, if not, whether being in occupation pursuant to the Military Orders, extinguished native title rights and interests.
The Full Federal Court by majority (North and Jagot JJ, Logan J dissenting) returned the following answers to these three questions:
- unnecessary to answer
- (a) no
The State of Queensland appealed to the High Court against the Full Federal Court’s decision on both parts of question three.
Split Decision in the High Court
The decision in the High Court was split. French CJ and Keane J (joint judgment) and Gageler J concluded that the occupation did not extinguish native title and Hayne, Kiefel and Bell JJ (in separate judgments) held that it had.
Section 23 of the Judiciary Act 1903 (Cth) provides that, where the Full Court is equally divided in opinion, the decision of the previous Court being appealed, in this case the Full Federal Court, shall be affirmed.
French CJ and Keane J reasoned that:
in enacting the NSA, Parliament intended to interfere as little as possible with individual rights and interests the NSA was made to operate for only six months after the end of the war although the acquisition of any land under the NSA would be of an exclusive nature, Parliament had distinguished the taking of temporary possession or control of land from the acquisition of some permanent estate or interest in land the NSA empowered the taking of physical possession, which their Honours reasoned was a statutory power distinct from the property rights that would have flowed from the conferral of a “right of exclusive possession” and the NSA’s compensation scheme assumed the continuation of the underlying rights of the owner or occupier.
Their Honours stated, at , that:
The exercise of the powers conferred by [the NSA] may be said to have overridden pre-existing rights, but that overriding operation, while potentially affecting their enjoyment and exercise, did not involve their extinguishment.
French CJ and Keane J set out, at , that the clear and plain intention to extinguish native title rights and interests cannot be satisfied ‘merely by the identification of restrictions or controls placed on the use of the land by statute or executive act done pursuant to statutory authority’ and that the ‘control regime which has a limiting purpose … cannot be said to be inconsistent with the subsistence of native title rights and interests.’
Gageler J agreed with French CJ and Keane J that the appeal should be dismissed. His Honour referred to Brennan J’s statement in Mabo, referenced in Western Australia v The Commonwealth (1995) 183 CLR 373 at 439, that:
a clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.
His Honour found nothing in the NSA regime inconsistent with the continued existence of native title rights (or of any other rights).
Hayne J found that the taking of possession of land under the NSA was the taking of exclusive possession and an act that extinguishes native title.
His Honour looked to the issue of extinguishment stating, at , that:
The determinative question in either kind of case is whether the rights granted or asserted are inconsistent with native title rights and interests over the land.
His Honour referred to the decision in Fejo v Northern Territory (1998) 195 CLR 96 and that a grant in fee simple is inconsistent with and, therefore, extinguishes native title ‘and is not revived if the land is later held again by the Crown.’ His Honour also reiterated the majority’s statement in Western Australia v Ward (2002) 213 CLR 1 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at , that:
“[t]wo rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment." And "[a]bsent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise.” (emphasis added).
Hayne J’s reasoning at  included an assumption that ‘competent legislation could validly suspend the exercise of native title rights and interests.’ However, his Honour doubted that legislation could achieve that result ‘except by express and detailed provisions to that desired effect.’ His Honour did not consider that result to have been achieved with the NSA.
Hayne J held that the appeal by Queensland should be allowed on the basis that the Commonwealth asserted rights, under the NSA, that were inconsistent with the Bar-Barrum People’s native title rights and interests and, therefore, extinguished those native title rights and interests.
Kiefel J discussed a range of cases including Mabo, Western Australia v Ward, Wik and Fejo, to set out that extinguishment of native title occurs where the rights granted are inconsistent with the native title rights and interests. Her Honour stated, at , that ‘the test of inconsistency is admittedly strict’ and, at , that ‘[e]xtinguishment does not depend on the inconsistency between the rights enduring permanently or even for a particular period.’
Her Honour stated, at , that ‘the Commonwealth took to itself a right of exclusive possession.’
Although accepting that the Military Orders were made under extraordinary war time powers and were limited in their duration, Kiefel J concluded, at , that ‘[t]hese features do not affect the test of inconsistency of rights which previous decisions of this Court apply as the criterion of extinguishment.’
Bell J did not accept that the Bar-Barrum People’s native title rights and interests survived the making of the Military Orders. Her Honour also applied an ‘inconsistency of incidents test’, reasoning at  that ‘[i]f continuation of the native title rights is logically inconsistent with the rights conferred or assumed by sovereign act, native title is extinguished.’
Furthermore, at , Bell J stated that:
[n]ative title rights do not “spring forth again” when land that has been the subject of a freehold or leasehold estate comes to be held again by the Crown. Such is the vulnerability of native title that the grant of a lease for a term of short duration will extinguish it as effectively as the grant of an estate in fee simple.
Her Honour distinguished Western Australia v Brown  HCA 8 on the basis that the rights in the mineral leases in that case allowed Western Australia and third parties access to the land, whereas the Military Orders in this case provided for exclusive possession.