North, Logan, Jagot JJ
This was an application for a determination of native title by the Bar-Barrum People (the applicants) over land on the Atherton Tableland in Far North Queensland. During the Second World War (WWII), extensive portions of that land were subject to five successive military orders (the Orders), made pursuant to the National Security Act (the NSA) and its Regulations. The issue was whether these Orders impacted on the applicants’ native title.
This matter was made a special case in the Full Court of the Federal Court of Australia to determine:
Whether Military Orders made under the National Security Regulations was an acquisition of the 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 conclusion of the majority of the Full Court, with Logan J providing his own dissenting judgment with respect to the issue of extinguishment, was:
No
Unnecessary to answer
(a) No
(b) No
In coming to this conclusion, the majority judgment of North and Jagot JJ considered:
The Statutory Scheme;
The question of extinguishment; and
The question of acquisition on just terms.
Statutory Scheme: North and Jagot JJ considered various provisions and secondary material of the National Security Act, which included the power to acquire any property other than land in Australia. The power to acquire land is provided by s 51 (xxxi) of the Constitution and the Lands Acquisition Act 1906 (Cth). Their Honours also looked to the Regulations in force when the military orders were made which included:
an authority to take possession of land, if necessary or expedient in the interests of the public safety, the defence of the Commonwealth (Cth) or the efficient prosecution of the war;
once in possession of the land, the Minister of State for the Army could use or direct the use of the land to the same extent as if holding an unencumbered fee simple estate in the land and to go beyond those rights and prohibit or restrict the exercise of other rights and interests, such as rights of way; and
a regime for paying compensation for damage or loss sustained by the owner or occupier of land by reason of the taking of possession of the land.
Extinguishment
The majority accepted the submission by the Applicants and the Cth that the operation of the scheme in place under the National Security Act was not to confer a right of exclusive possession, such as to leave no room for the continued existence of native title rights and interests, but rather that those rights continued to exist while the scheme operated so those rights simply could not be exercised during that period.
This construction was based on the general principle that:
a statute ought not to be construed as extinguishing common law property rights unless no other construction is reasonably open (Akiba v Commonwealth [2013] HCA 33 (Akiba) French CJ and Crennan J at [24]).
The State of Queensland (the State) and the Northern Territory (NT) proposed that native title rights and interests are not equivalent to other rights and interests in land and, if the rights granted under the NSA scheme were inconsistent with native title, then native title was extinguished.
The State and the NT considered [at 30] that native title was extinguished because:
the provisions in the military orders for the enjoyment of the rights of an estate in fee simple and the exclusion of all others, and the exercise of any right over the land, were not confined to any particular purpose. Hence, it was submitted, the orders “are not analogous to leases limited by specific purposes such as mining purposes or pastoral purposes”.
North and Jagot JJ considered these and other competing arguments about extinguishment and applied a range of leading cases in native title. In considering the joint judgment in Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 [at 41] North and Jagot JJ discussed that, once ended, native title rights would not spring forth again when the land came to be held again by the Crown. Nevertheless, North and Jagot JJ considered that the Commonwealth had no objective intention to extinguish native title rights and interests [at 52] because it:
took for itself exclusive possession, for a limited purpose for a limited time on the objectively ascertainable premise apparent from the legislative scheme that all underlying rights and interests should continue. [at 53]
Their Honours considered that the Commonwealth’s exclusive possession precluded the exercise of native title rights and interests. However, that did not lead to the conclusion of an objective intention to extinguish native title rights and interests [at 57]. Therefore, the making of the orders and being in physical occupation of at least some of the special case land pursuant to the Orders did not extinguish native title rights and interests.
Acquisition on Just Terms
The Full Court considered, if there was an acquisition of property, it was on just terms because the NSA scheme considered the application of compensation for loss suffered by reason if its exercise of power.
Although their Honours considered [at 66] that determining whether there was an acquisition of property was moot, North and Jagot JJ applied principles from Minister of State for the Army v Dalziel (1944) 68 CLR 261 [at 75], and determined that property was acquired.