Sean and Lauren


On 13 May 2015, we saw something unusual in the High Court: a 3:3 split. The native title case of Queensland v Congoo revealed a Court sharply divided. There was division over the use of ‘purpose’ in statutory interpretation. Behind this division was substantive disagreement about whether native title attracted equivalent treatment under the law to other rights in land. Also evident was sharp conflict over the distinction between regulation and extinguishment – a crucial question of degree. After more than 20 years, a battle is still going on inside the Court about extinguishment law. The battle is over not so much the correct legal test but rather the values and mindset that inform its application.

The Bar-Barrum native title claim and the High Court’s Decision

In Congoo, the Bar-Barrum People asserted native title over an area of the Atherton Tableland in far north Queensland. During World War II, part of this land was used by the Commonwealth as a live fire artillery range to train units about to ship out to the Pacific War. The Commonwealth took possession of the land pursuant to five military orders made under regulation 54 of the National Security (General) Regulations (authorised by the National Security Act 1939 (Cth) (NSA)). The Commonwealth relinquished possession and the orders formally expired in 1946, almost 70 years ago.

In the Full Federal Court a Special Case hived off the question whether the Commonwealth’s actions between 1943 and 1946 had the effect of permanently extinguishing Bar-Barrum native title rights and interests. The parties agreed that, subject to the effect of the military orders, the Bar-Barrum people hold at least non-exclusive native title rights and interests. The majority in the Full Federal Court (North and Jagot JJ, Logan J dissenting) found that neither the military orders nor the Commonwealth’s physical occupation of the land extinguished native title. Queensland obtained special leave to appeal to the High Court.

French CJ and Keane J (writing together) and Gageler J dismissed the appeal (for the purposes of this post, ‘the majority’); whilst Hayne, Kiefel and Bell JJ allowed it (‘the minority’). With the Court evenly divided, the decision in the Full Federal Court below was affirmed under s 23(2)(a) of the Judiciary Act 1903 (Cth), resulting in victory for the Bar-Barrum people.

The importance of extinguishment in native title

Extinguishment looms large in native title. It is one of two central issues in most claims, the other being the continuous connection of a group to their territory through the observance of traditional law and custom. The significant thing about extinguishment law is its overriding effect. It is a set of technical rules developed to characterise the friction between official action and native title, regardless of the social facts on the ground. Even where a group can prove continuous connection it will count for nothing if extinguishment applies. For Indigenous groups who have maintained a traditional connection to their land that is a fearsome prospect. There was a suggestion in this case, for example, that the Commonwealth had made over 13,000 military orders for possession across Australia during World War II. That would mean widespread damage to native title claims if the Court concluded in Congoo that such orders were extinguishing acts.

Extinguishment law requires the court to consider whether the relevant action – which could be the enactment of fisheries legislation, the granting of a mining lease, or, as in Congoo, government seizure of land during wartime – terminated the underlying Indigenous rights, or whether it merely inhibited the full and free exercise of those rights for the duration and to the extent necessary to give full legal effect to that official action? In other words, these cases frequently boil down to a single question: has there been extinguishment or merely regulation?

Inconsistency is the central tool of analysis in determining the answer to that question: the court asks whether the creation of rights, powers and obligations by the Crown or parliament was necessarily inconsistent with the continued existence of native title. Under this doctrine, the grant of a fee simple – which confers the power to exclude everyone and anyone for any reason – has been held to be inconsistent with the survival of native title in the same area. The question is what else meets that test of necessary inconsistency? The answer to this question typically involves a careful exercise in statutory interpretation.

Statutory interpretation and the relevance of ‘purpose’

Congoo required the Court to interpret the scope of rights and powers created by the NSA, regulations and military orders and to assess the legal impact they had on the Bar-Barrum people’s pre-existing native title rights. In the majority, French CJ and Keane J began with a purposive approach to interpreting the NSA (Gageler J took a similar approach to this question). The Commonwealth obtained ‘possession’ under a statutory power rather than as a property right. The scope of that possession was to be interpreted by reference to its finite defence purpose. That included a ‘limiting negative purpose … apparent from the Second Reading Speech’ given by Prime Minister Robert Menzies in 1939: he had said that the NSA was ‘to affect existing rights as little as possible’ in granting wide powers to the Executive during wartime. This gave French CJ and Keane J’s approach to statutory construction a rights-attentive tilt.

They said this approach was supported by earlier High Court cases interpreting the impact of these military orders on non-native title rights, in the pre-native title era. Those cases had looked at the compensation regime under the NSA – which clearly assumed that pre-existing rights would survive a military order conferring possession on the Commonwealth.  French CJ and Keane J concluded that the Commonwealth’s possession had impaired the exercise of pre-existing property rights but not extinguished them. The question then remained as to whether the Bar-Barrum’s native title rights should attract equivalent treatment to these other pre-existing rights. We return to this below.

The minority judges rejected the idea that the term ‘possession’ was limited by the defence purpose of the NSA. For these judges, the regulations conferred a right of exclusive possession on the Commonwealth and that was decisive on the question of native title extinguishment. Hayne J denied that there was a generally applicable statutory purpose of preserving pre-existing rights that would extend to native title. Consistent with a skepticism he has expressed in non-native title cases, he said it was misleading to think of purpose as requiring a constructed objective for the Act:

It matters not whether those who made the … orders did or did not think about what rights or interests in the land would survive beyond the expiration of the orders.

Therefore, according to Hayne J, Prime Minister Menzies’ comments in the Second Reading Speech were irrelevant to the issue of native title extinguishment.

 Native title rights: equivalent treatment or radical differentiation?

A question of great significance in determining whether there was inconsistency in Congoo was whether native title should attract equivalent treatment – that is, whether it survived the making of the military order along with other property rights. The Commonwealth had submitted that equivalent treatment for native title was ‘an available and better construction’ of the statutory scheme.

The majority evidently shared the Commonwealth’s view and saw no reason to exoticise the treatment of native title in carrying out the statutory interpretation necessary for assessing inconsistency. Justice Gageler explained that the wording of the regulations preserved pre-existing rights, ‘irrespective of the source of those rights’.

In contrast, the minority insisted that native title is radically different, which means here, it seems, ‘less legally secure’ than other property rights. The basis for this difference is that native title is sourced in traditional law and custom not common law tenure. Accordingly, the principles of extinguishment law must, it appears, be radically different as well.

This raises the question whether the principle of racial non-discrimination has a place in the common law of extinguishment. As a member of the plurality in Ward (an extinguishment case decided in 2002), Hayne J acknowledged the non-discrimination principle (expressed in statutory form in s 10(1) of the Racial Discrimination Act 1975 (RDA)) in the following way:

[The] Court has rejected the argument that native title can be treated differently from other forms of title because native title has different characteristics from those other forms of title and derives from a different source.

The RDA was not in place when the military orders were made in the 1940s. But the question remains whether, in the 21st Century, judges applying the common law principles of extinguishment should radically differentiate the effect of statutes on native title because native title ‘derives from a different source’ to other property rights.

Regulation versus extinguishment

Another substantive difference between the majority and the minority was the point at which they drew the line distinguishing regulation and extinguishment: a question of degree in applying the test of inconsistency. As with the division of opinion over equal treatment of native title, the underlying disagreement was essentially about the vulnerability of native title to extinguishment.

It is clear from a series of High Court cases (first Yanner and then, more recently, Akiba, Karpany and Brown) that legislative or executive action can go a long way in authorising suppressive legal effects on the exercise of native title rights without extinguishing the rights themselves. In the three most recent cases, the Court reached a unanimous conclusion in favour of regulation and against extinguishment. However, in Congoo the Court split down the middle on this issue. The question was whether the restrictions put on subsisting native title rights by the military orders were so substantial that the existence of a military order necessarily implied their extinguishment.

The majority held that although the military orders precluded the exercise of native title rights for their duration, this was not enough to result in extinguishment. In reaching this conclusion the majority emphasised, and brought together, the other issues that we have drawn attention to: the limited purpose of the military orders, the attributed purpose of doing least possible harm to existing rights and the general premise that pre-existing rights survived. French CJ and Keane J emphasised that the criterion of inconsistency is not met ‘merely by identification of restrictions or controls placed on land’ and indicated that statutory conferment of possession must not be taken out of context and disconnected from its statutory purpose. Although the joint judgment did not use the word ‘suspension’, they held that the effect of the military orders was a temporary suppression of the enjoyment of native title rights. Gageler J went further, indicating that a partial, temporary or conditional ‘prohibition’ on the exercise of native title will not ordinarily result in inconsistency (and therefore, would not result in extinguishment).

The minority stressed the conferral of what they said was ‘exclusive’ possession on the Commonwealth and reached a conclusion of extinguishment, based on earlier High Court cases about exclusive possession grants. All of the judges in the minority emphasised the vulnerability of native title rights to extinguishment by inconsistent grants of even a short duration. Justice Kiefel was particularly emphatic that the temporary nature of the orders was irrelevant.


The interlocking differences of technique, emphasis and legal values evident in the judgments were mirrored by one final disagreement over a simmering dispute in native title doctrine: whether extinguishment requires evidence of a ‘clear and plain intention’. Early High Court cases said that extinguishment was such a serious consequence that it required nothing less than a clear and plain intention. Later cases obscured the role of this interpretive principle that, in the same way as the principle of legality, has a rights-protective content. The majority in Congoo said yes: the ‘clear and plain intention’ principle has always influenced extinguishment doctrine. French CJ and Keane J said judges need not, however, operationalise the principle as some independent tool of analysis. Rather, it works to set the height of the bar for a finding of inconsistency, via a principle of necessity. The test of inconsistency is imbued with the clear and plain intention principle, because the test is only satisfied if the existence of a right, power or obligation created by parliament or the executive necessarily implies the non-existence of all native title rights and interests. The minority generally disparaged the notion of intention as ‘apt to mislead’ and more a statement of conclusion than a factor in extinguishment analysis.

Ultimately, the Court in Congoo appears divided between two views: either extinguishment is essentially a legal conclusion of last resort or native title is to be radically differentiated from other rights when it comes to extinguishment analysis. Justice Hayne, whose judgment was a strong voice against equivalent treatment in Congoo, retired from the Court earlier this month. The views of the new High Court appointees Nettle and Gordon JJ, will play a decisive role in the future direction of native title.

Associate Professor Sean Brennan is the Director of the Gilbert + Tobin Centre of Public Law, UNSW Law.

Lauren Butterly is an Associate Lecturer in Law at ANU.

Suggested citation: Sean Brennan and Lauren Butterly, ‘High Court sharply divided in latest native title case’ on AUSPUBLAW (18 June 2015) <>.