“The Doctrine of Extinguishment: And then there was Congoo”

Abstract

Extinguishment has been a key issue in native title cases following the 1992 High Court decision in Mabo v Queensland (No 2). In 2015, the High Court in Queensland v Congoo was equally divided in determining whether extinguishment of native title had occurred. Congoo involved an appeal from the Full Federal Court which had held that certain military orders made during the Second World War did not extinguish native title. Accordingly, the Full Federal Court decision appealed from was affirmed. This article reviews the developing doctrine of common law extinguishment of native title law prior to the High Court’s decision in Congoo. The article then critically examines the High Court’s reasoning in Congoo regarding the interpretation of the common law doctrine of extinguishment and also considers the interpretation of common law extinguishment rules post-Congoo. Given the divergence of opinion in Congoo, it is possible that these extinguishment principles will again be revisited in future cases concerning extinguishment.