The High Court’s May 2015 decision in Congoo has cast further grave uncertainty on the already divisive concept of extinguishment of native title rights. As the Justices split evenly, the case was determined by application of s. 23(2) (a) of the Judiciary Act 1903 (Cth). This affirmed the Full Federal Court’s decision to reject Queensland’s contention that the Bar-Barrum people’s native title rights had been extinguished by wartime delegated legislation and the attendant military occupation of land in the Atherton Tablelands from 1943-45.
This paper unpicks, explores and questions the relative merits of the entirely conflicting interpretive approaches taken by the High Court judges in this case: both the purposive approach taken by the “majority”, and the stark rejection of a concept which I describe as “temporality” by those Justices who ruled in Queensland’s favour. It does so by trying to make sense of the discordant judicial principles which now regulate extinguishment. The issues central to Congoo will arise soon again: therefore, and in an attempt to reach consistency of the law, this paper concludes by submitting that a concept of “contextualism” must be applied in analogous cases.